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Arbitration
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Arbitration in France
This note provides an overview of the legal framework for domestic and international arbitration in
France, as laid down in the applicable French legislation and developed by the French courts.
Nicolas Bouchardie (Counsel) and Celine Tran (Associate), White & Case LLP, Paris
Contents
Sources of French arbitration law
Code of Civil Procedure
Civil Code and Code of Judicial Organisation
Paris Court of Appeal and Cour de Cassation case law
International sources
Jurisdictional issues: French approach to kompetenz-kompetenz
Arbitration agreements
Formal requirements
Separability
Extension to non-signatories
Unilateral/optional clauses
Arbitral tribunal
Number of arbitrators
Necessary qualifications
Appointment
Challenges
Arbitrators' duties and powers
Courts' powers in support of arbitration
Interim measures
Stay of court proceedings
Appointing and removing arbitrators
Resource type: Practice note Status: Maintained Jurisdiction: France
The original version of this practice note was published on Practical Law Arbitration.
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Form, content and notification
Correction and interpretation
Challenges to awards
Grounds for challenge
Enforcement
Effects of an award set aside in another country
Key institutions
ICC International Court of Arbitration
French Arbitration Association
French Commission on Arbitration
International Arbitration Chamber of Paris
Paris Maritime Arbitration Chamber
Paris, the Home of International Arbitration
France is one of the most established and popular venues for international arbitration. Its attractiveness
as a place of arbitration results from a variety of factors, including:
Its liberal arbitration laws.
A judicial pro-arbitration tradition.
The presence of leading arbitration practitioners.
The location of the International Chamber of Commerce (www.practicallaw.com/8-201-5878) (ICC)
headquarters in Paris.
Paris is consistently ranked first as the most frequent seat for ICC arbitration. For example, according
in 100 cases, followed by London (71 cases)
second behind Switzerland. French law was
ranked fourth in terms of law elected by the parties in their contract, and 115 ICC arbitrators were
Sources of French arbitration law
The provisions governing arbitration in France are primarily found in the Code of Civil Procedure (Code
de procdure civile) (CCP), supplemented by general provisions contained in the Civil Code (Code civil)
and Code of Judicial Organisation (Code de l'organisation judiciaire). These provisions have often been
interpreted, and sometimes expanded upon, by the French courts. Although there is no doctrine of
precedent as such under French law, lower courts generally rely on decisions of higher courts, which
therefore have an important role in interpreting laws and specifying their content. Accordingly, this note
will refer to important French court decisions where appropriate.
to ICC statistics for the year 2012, Paris was the seat
and Geneva (62 cases), with France ranking overall
of French nationality.
Awards
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This note substantially relies on an unofficial translation of the CCP's provisions on arbitration, which is
available at www.parisarbitration.com. Articles from other codes and case excerpts are translated by the
authors of this note.
In 1981, France enacted a Decree on international arbitration, one of the first modern, liberal arbitration
laws (Decree No 81-500 of 12 May 1981). The Decree distinguished between domestic and international
arbitration, taking a more permissive stance towards international arbitration. The courts soon developed
a liberal interpretation of this Decree. Thirty years later, in 2011, France passed a new law reforming the
statutory provisions on arbitration, codifying existing case law and introducing certain innovative features
(Decree No 2011-48 of 13 January 2011, which came into force on 1 May 2011, subject to certain
exceptions) (see Legal update, French arbitration law comes into force (www.practicallaw.com/1-505-9240)).
The new law did not dramatically change the previous legal framework, which was already very
favourable to arbitration. However, it enhanced France's pro-arbitration policy, notably by broadening the
scope of the parties' freedom with respect to the arbitral process. The new French arbitration law
therefore confirmed France as one of the most arbitration-friendly jurisdictions in the world.
French law on arbitration is not directly based on the UNCITRAL Model Law on International Commercial
Arbitration 1985 (www.practicallaw.com/6-205-6445) and is substantially more liberal than the Model
Law (www.practicallaw.com/7-205-6044) in some respects.
Code of Civil Procedure
The 2011 Decree introduced a new set of rules in the CCP, which remains divided into a section on
domestic arbitration (Articles 1442 to 1503, CCP) and a section on international arbitration (Articles 1504
to 1527, CCP). However, many provisions are common to both types of arbitrations. Article 1506 of the
CCP lists the provisions applicable to domestic arbitration that also apply to international arbitration.
According to the CCP, an arbitration is international "when international trade interests are at stake"
(Article 1504, CCP). This article lays down an economic criterion of "internationality" rather than a
legal/formal one, in line with France's pro-arbitration approach.
This criterion is broad and covers a wide variety of disputes. French courts have explained that the
domestic or international nature of an arbitration does not depend on the applicable law, seat of the
arbitration, parties' intentions, or their nationalities, but on the nature of the underlying economic
transaction or relation, which must involve more than one state (Paris Court of Appeal, SARL Carthago
Films v SARL Babel Productions (29 March 2001), Revue de l'Arbitrage 2001 at page 543). In short, to
qualify as international within the meaning of French arbitration law, the dispute must involve a tangible
or intangible cross-border transfer of goods, services or funds (Paris Court of Appeal, Agence
Transcongolaise des Communications-Chemin de fer Congo (ATC-CFCO) v Compagnie Minire de
l'Ogooue-Comilog S.A., Case No 95/80283 (1 July 1997)).
Mandatory provisions of the CCP include:
Article 1448, which describes the negative effect of kompetenz-
kompetenz (www.practicallaw.com/4-205-6045) (see Jurisdictional issues: French approach to
kompetenz-kompetenz) (domestic and international arbitration).
Articles 1450 to 1460, which govern all aspects of the arbitral tribunal:
Article 1450, which lays down the conditions for being an arbitrator (domestic arbitration only);
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Article 1451, which requires an uneven number of arbitrators (domestic arbitration only);
Article 1452, which provides default rules for appointing arbitrators (domestic and
Article 1453, which provides default rules for appointing arbitrators in multi-party arbitrations
(domestic and international arbitration);
Article 1454, which deals with disputes relating to the constitution of the arbitral tribunal (domestic
and international arbitration);
Article 1455, which sets out the effect of a manifestly void or non-applicable arbitration agreement
on the appointment of arbitrators (domestic and international arbitration);
Article 1456, which relates to the tribunal's mandate and disclosure duties, as well as the removal
of arbitrators (domestic and international arbitration);
Article 1457, which governs the incapacity, unavailability and resignation of an arbitrator (domestic
and international arbitration);
Article 1458, which relates to the removal of arbitrators (domestic and international arbitration);
Article 1459, which determines who is the judge acting in support of arbitration - the juge d'appui
(support judge) (domestic arbitration only); and
Article 1460, which regulates applications before the judge acting in support of arbitration
(domestic and international arbitration).
Article 1491, which guarantees the right to bring an action to set aside an award (domestic
Civil Code and Code of Judicial Organisation
Although most provisions relevant to arbitration are found in the CCP, a few overarching articles of the
Civil Code apply to both domestic and international arbitration (Articles 2059 to 2061, Civil Code). These
articles specify what matters may or may not be subject to arbitration ("arbitrability").
Article 2061 of the Civil Code generally recognises the right to arbitrate in France, "[s]ubject to specific
statutory provisions, an arbitration clause is valid in contracts that are concluded for the purpose of a
professional activity".
Article 2060 of the Civil Code generally prohibits French state subdivisions and state entities from
arbitrating their disputes, with possible exceptions for certain categories of industrial and commercial
state entities (tablissement public caractre industriel ou commercial).
The issue of whether the rule set out in Article 2060 applies to international contracts (as opposed to
purely domestic contracts) entered into by French state subdivisions and state entities has given rise to a
disagreement between the Cour de Cassation (the highest French court for civil and criminal matters)
and the Conseil d'Etat (France's highest administrative court):
The Cour de cassation has long held that the French State and French state entities can validly
include an arbitration clause in international commercial contracts (Cour de cassation, Trsor Public v
Galakis, first civil chamber, Case No.. 61-12.255 (2 May 1966)). By extension, the French courts have
international arbitration);
arbitration only).
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held that foreign states and state entities can validly agree to arbitrate their disputes and are, as a
consequence, prevented from relying on their own domestic law later to challenge the jurisdiction of
the arbitral tribunal (Paris Court of Appeal, Gatoil v National Iranian Oil Company, Case Nos 90/1957
and 90/22741 (17 December 1991)).
By contrast, the Conseil d'Etat has indicated that the prohibition laid down in Article 2060 applies to
international contracts that also qualify as administrative contracts under French law (Conseil d'Etat,
Opinion in the Eurodisney matter (6 March 1986), Revue de l'Arbitrage 1992 at page 397). Following
this decision, the French legislator expressly authorised the French State and French state entities to
include arbitration clauses in contracts entered into with foreign companies only if they relate to
an "operation of national interest" (Article 9, Law No 86-972 of 19 August 1986).
Turning to the issue of jurisdiction, the Code of Judicial Organisation grants jurisdiction to the (civil) Court
of First Instance (Tribunal de Grande Instance) for the recognition (exequatur) and enforcement of
domestic and foreign arbitral awards (Article R.212-8, Code of Judicial Organisation) (see Awards:
Enforcement). As an exception to this general principle, specific rules may apply to the recognition and
enforcement of arbitral awards when a party is a French state subdivision or state entity (including for
international contracts). For instance, French administrative courts may be competent to hear recognition
and enforcement cases involving public procurement or public works contracts entered into with a foreign
entity (Tribunal des Conflits, Institut national de la sant et de la recherche mdicale v Fondation Letten
F. Saugstad, Case No 3754 (17 May 2010); Conseil d'Etat, Syndicat mixte des aroports de Charente v
Socit Ryanair Ltd., Case No 352750 (19 April 2013)).
Paris Court of Appeal and Cour de Cassation case law
The Paris Court of Appeal and the Cour de Cassation have had a major role in developing French
arbitration case law, including aspects not codified in the CCP (for example, extension of the arbitration
agreement to non-signatories, effect of an award set aside at the seat of arbitration, validity of optional
arbitration clauses, and so on). These courts have developed a relatively uniform body of case law in the
field of arbitration, ensuring consistency and legal predictability.
The substantial body of pro-arbitration case law developed over the years by these two courts was
instrumental in revising France's arbitration law.
International sources
France is a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral
Awards of 1958 (New York Convention (www.practicallaw.com/6-205-5196)), in force in France since
24 September 1959. In practice, the New York Convention is rarely applied in France as French
arbitration rules on recognition and enforcement are generally more favourable than the New York
Convention (for example, on the formal requirements of arbitration agreements).
France is also a party to the Geneva (European) Convention on International Commercial Arbitration of
1961 and the Washington Convention of 1965 creating the International Centre for Settlement of
Investment Disputes (www.practicallaw.com/7-205-5148) (ICSID). Additionally, France has entered
into bilateral treaties on the protection of investments with almost 100 states.
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Jurisdictional issues: French approach to kompetenz-kompetenz
France recognises the principle of kompetenz-kompetenz (www.practicallaw.com/4-205-6045) (or
competence-competence) and interprets it broadly. Under French law, kompetenz-kompetenz is twofold,
as it yields both a positive and a negative effect.
The positive aspect of kompetenz-kompetenz is stated in Article 1465 of the CCP:
"The arbitral tribunal has exclusive jurisdiction to rule on objections to its jurisdiction".
In other words, the arbitral tribunal has the authority to decide on its own jurisdiction, and on the
existence and validity of the arbitration agreement.
If a party fails without cause to object in a timely manner to the arbitral tribunal's jurisdiction before the
tribunal itself, it is deemed to have waived its right to raise such an objection (Article 1466, CCP).
Although the CCP does not specify when exactly an objection to jurisdiction must be raised, most legal
commentators support a stringent application of this rule, according to which an objection to jurisdiction
must be raised in limine litis, that is, before any defence on the merits. Accordingly, a party is precluded
from invoking the arbitral tribunal's lack of jurisdiction for the first time at the annulment or enforcement
stage (see Paris Court of Appeal, Case No 2001/16532 (22 May 2003)).
The negative aspect of kompetenz-kompetenz is laid down in Article 1448 of the CCP:
"When a dispute subject to an arbitration agreement is brought before a court, such court
shall decline jurisdiction, except if an arbitral tribunal has not been seised of the dispute and
if the arbitration agreement is manifestly void or manifestly not applicable. A court may not
decline jurisdiction of its own motion."
Therefore, French courts decline jurisdiction to hear a matter whenever there is already a pending
arbitration and whenever a party claims the dispute is subject to arbitration, unless the arbitration
agreement is prima facie void or not applicable.
Under French law, the principle of kompetenz-kompetenz does not grant arbitral tribunals absolute
priority over French courts to rule on jurisdiction. Kompetenz-kompetenz is a rule of chronological, rather
than hierarchical, priority, according to which the arbitral tribunal must rule first on questions relating to
its jurisdiction, subject to the courts' subsequent scrutiny. French courts have specified that this judicial
review at the annulment or enforcement stage is to be performed de novo without deference to the
tribunal's findings of fact or law. The Cour de Cassation has held that French courts are entitled to
perform a review of "all legal and factual elements that are relevant to determine the reach of the
arbitration agreement and draw the corresponding conclusions regarding the arbitrators' compliance with
their mission" (Cour de cassation, first civil chamber, Fondation Albert Abela Family Foundation et. a. v
Fondation Joseph Abela Family Foundation, Case No 08-20,563 (6 October 2010)).
The above developments apply to both domestic and international arbitration.
For further discussion on this issue, see Practice note, Jurisdictional issues in international
arbitration (www.practicallaw.com/2-382-1325).
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Arbitration agreements
Formal requirements
The requirements for arbitration agreements differ between domestic and international arbitration.
For domestic arbitration, an arbitration agreement must be in writing (Article 1443, CCP) and can be in
the form of either an arbitration clause in a contract (clause compromissoire) or a separate agreement to
arbitrate an existing dispute (compromis) (Article 1442, CCP). If the latter, the agreement must define the
subject matter of the dispute (Article 1445, CCP).
Arbitration agreements in international arbitration are not subject to any formal requirements (Article
1507, CCP). Article 1515 of the CCP requires that the arbitration agreement, or a copy of it, must be
provided at the stage of the award's recognition and enforcement. However, commentators agree that
this does not require that the arbitration agreement is in writing, but only that the agreement is evidenced
in a written document.
A recurring issue before the French courts is whether an arbitration agreement is binding when it is
merely incorporated by reference into the contract giving rise to the dispute. In many decisions, the Cour
de cassation has made it clear that courts will give effect to an arbitration clause contained in a separate
document (for example, general terms and conditions) incorporated by reference into a contract, even if
the clause is not explicitly referred to in the main contract, provided the other party was aware of the
reference to it and did not object to it (Cour de cassation, first civil chamber, Prodexport v FMT
Productions, Case No 95-17.603 (3 June 1997)).
In a ground breaking case, the Cour de cassation upheld the validity of an arbitration agreement which
was contained in an annex amending standard terms and conditions that were incorporated by reference
into the main contract (Cour de cassation, first civil chamber, Municipalit de Khoms El Mergeb v Dalico
Contractors, Case No 91-16.828 (20 December 1993)). According to this liberal approach, the burden
lies on the party challenging the arbitration clause, who must prove that it had no knowledge of the
document containing it.
Separability
French law recognises the principle of separability (www.practicallaw.com/4-205-5215), that is, the
arbitration agreement is separate from, and independent of, the contract in which it is contained or to
which it refers (Article 1447, CCP). Therefore, an arbitration agreement will not be affected if the main
contract is void. This allows an arbitral tribunal to assert jurisdiction despite a challenge to the existence
or validity of the underlying contract. Conversely, the invalidity of an arbitration clause will not extend to
other contractual provisions.
The principle of separability applies to both domestic and international arbitration.
In international arbitration, the principle is considered a substantive rule of international arbitration
(rgle matrielle). This means that French courts apply it irrespective of the law governing the
arbitral proceedings.
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agreement should only be assessed with regard to the parties' consent and without reference to any
national law (Cour de cassation, first civil chamber, Municipalit de Khoms El Mergeb v Dalico
Contractors, Case No 91-16.828 (20 December 1993)). The existence and validity of the arbitration
agreement is therefore determined only by reference to the French concept of international public policy
(ordre public international).
In international arbitration French courts have held that arbitration agreements are presumed to be valid,
and the burden therefore lies on the party challenging the arbitration agreement to establish that it is not
(Cour de cassation, first civil chamber, Zanzi v J. de Coninck, Case No 96-21.430 (5 January 1999)).
For further discussion about separability, see Practice note, Separability of arbitration agreements in
international arbitration (www.practicallaw.com/0-381-0021).
Extension to non-signatories
Under general principles of French contract law, agreements only bind the contracting parties (Article
1165, Civil Code). The same rule applies to arbitration agreements, which are typically not binding on
non-signatory parties.
However, in some instances, and to streamline legal proceedings in complex contractual disputes,
French courts consider that third parties may be bound by an arbitration clause that they have not
signed. This can occur in the context of a group of companies or interconnected contracts.
In particular, French courts have relied on the "group of companies" doctrine to hold that an arbitration
clause is enforceable against third parties who are involved in the performance of the contract, when the
contractual situation and activities of these parties made it possible to presume that they were aware of
the existence and scope of the arbitration clause. The underlying rationale is to enable the arbitral
tribunal to deal with all economic and legal aspects of a dispute, and is justified either by the theory of
implied ratification or acceptance, or by the piercing of the corporate veil (Paris Court of Appeal, Socit
V 2000 v socit Project XJ 220 ITD, Cases Nos 94/12322 and 94/12323 (7 December 1994)).
The existence of a group of companies is not sufficient in and of itself to extend an arbitration agreement
to third parties (and in fact, most arbitral tribunals refuse to extend an arbitration clause solely on this
basis). It is merely a circumstance that favours such an extension, which requires interpreting a party's
behaviour to infer its consent to be bound by the arbitration agreement. Accordingly, this doctrine is very
fact-dependent and French courts take into account a variety of elements, particularly the third party's
participation in the negotiation, conclusion, performance and termination of the contract.
This doctrine was first applied by the Paris Court of Appeal in the landmark decision of Dow Chemical v
Isover-Saint-Gobain (21 October 1983), Revue de l'Arbitrage 1984 at page 98). In Dow Chemical, the
court dismissed an application to set aside an award that had extended the arbitration agreement to two
companies of the same corporate group to which the signatory company belonged, although they were
not party to the underlying agreements but had performed under them.
Subsequent cases have taken a more practical approach, generally holding that "the effects of an
arbitration agreement extend to parties who are directly involved in the contract's performance and in the
disputes that may arise from it", whether or not the parties belong to the same group of companies as the
signatory and whether or not they were aware of the arbitration agreement and impliedly adhered to it
(see Cour de cassation, first civil chamber, Sts ABS et AGF Iart v St Amkor technology et a., Case
Specifically, French courts have held that the existence, validity, and effectiveness of the arbitration
). No 04-20.842 (27 March 2007)
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Although it is difficult to identify clear rules when determining whether an arbitration clause can be
extended to a non-signatory under French law, the criterion ultimately used by the courts is the
behaviour and involvement of the non-signatory party.
Unilateral/optional clauses
Unilateral or optional arbitration clauses are clauses that grant one party, but not the other, the right to
choose between arbitration and court adjudication in case of a dispute. On the basis of a longstanding
Court of Appeal decision (Angers Court of Appeal, S.A. Sicaly v Grasso Stacon Koninklijke Machine
Fabrieken NV (25 September 1972), Revue de l'Arbitrage 1973 at page 164), these optional clauses
have generally been deemed valid and enforceable under French law.
In 1972, the Angers Court of Appeal thus decided a case in which a contract between several Dutch
companies and a French company granted the former the right to choose between arbitration and state
courts (Angers Court of Appeal, S.A. Sicaly v Grasso Stacon Koninklijke Machine Fabrieken NV, Revue
de l'Arbitrage 1973, p. 164, 25 September 1972). The French party brought suit before the French
courts, arguing that such an optional clause could only mean that the parties had no intention to submit
their dispute to arbitration. The court disagreed and refused to consider the clause null and void. The
Cour de cassation subsequently dismissed the French party's application to reverse the Court of
Appeal's decision (Cour de cassation, first civil chamber, Case No. 72-14.706, 15 May 1974).
However, a recent decision rendered by the Cour de cassation (Ms X v Banque Prive Edmond de
Rothschild (Cour de cassation, first civil chamber, Case No 11-26.022 (26 September 2012))) on
jurisdiction clauses has thrown this solution into question.
In Rothschild, the court ruled on the validity of a unilateral jurisdiction clause contained in an agreement
between a bank and its client. The clause required the client to submit all disputes to the Luxembourg
courts, but allowed the bank to bring an action in the client's country of domicile or "any other competent
court". The client brought proceedings against the bank in France and the bank challenged the French
court's jurisdiction.
The court held that the jurisdiction clause was invalid because it was "potestative", that is, it gave the
bank the unconditional right to choose the competent court, and contravened the Brussels
Regulation (www.practicallaw.com/2-205-5103) (EU Regulation No 44/2001 on jurisdiction and the
recognition and enforcement of judgments in civil and commercial matters). In Rothschild, the court
found the jurisdiction clause to be invalid not because it granted only one party the right to choose other
forums, but because it did not specify which other forums the bank could seize, thus denying the other
party certainty and predictability (see Legal update, French Supreme Court rules on validity of one-way
jurisdiction clause (www.practicallaw.com/5-522-4238)).
The impact of this decision, if any, on unilateral arbitration clauses remains unclear. However, on the
basis of this decision, it is possible that an arbitration clause that grants one party the right to choose
between arbitration and "any competent court" could be struck down for lack of specificity. To be valid,
such a clause would have to state precisely which court(s) is (are) competent, either by name or by
reference to an objective criterion.
For more discussion on the validity and enforceability of unilateral option clauses in France, see Article,
Unilateral option clauses in arbitration: an international overview (www.practicallaw.com/7-535-3743).
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Arbitral tribunal
Number of arbitrators
In both domestic and international arbitration, the parties are free to determine the number of arbitrators,
directly or by reference to arbitration rules (Articles 1444 and 1508, CCP).
However, in domestic arbitration, the number of arbitrators must always be uneven, so that if the
arbitration agreement provides for an even number of arbitrators, an additional arbitrator must be
appointed (Article 1451, CCP). There is no corresponding rule for international arbitration.
The CCP does not provide for a default number of arbitrators in the absence of an agreement.
Necessary qualifications
French law imposes few requirements on arbitrators, none of which relate to the arbitrators' nationality or
professional qualifications.
Specifically, the CCP provides that only natural persons having full capacity can act as arbitrators in
domestic arbitration proceedings. Legal persons, if designated in the arbitration agreement, can only
administer the arbitration (Article 1450, CCP). This provision does not apply to international arbitration.
The CCP also lays down a requirement of independence and impartiality, applicable in both domestic
and international arbitration (Article 1456, CCP). Failure by the arbitrators to meet this requirement may
result in their removal (see Arbitral tribunal: Challenges).
Appointment
Under French law, the parties are not required to specify the procedure for appointing the arbitrators. As
mentioned above, the parties can also refer to institutional or ad hoc rules. In the absence of any specific
procedure or designated arbitral rules, the CCP provides that the person or institution administering the
arbitration or the support judge will appoint the arbitrators, whether the arbitration is domestic or
international (Article 1452, CCP). In such cases:
Where the parties have agreed to have their dispute decided by a sole arbitrator, but fail to agree on
who should be appointed, the person or institution administering the arbitration, if any, or the support
judge will proceed with the appointment.
Where the parties have agreed to have their dispute decided by three arbitrators, each party must
appoint an arbitrator and the two party-appointed arbitrators must then appoint a third arbitrator. If a
party fails to appoint an arbitrator within one month of receiving a request to that effect, or if the two
arbitrators fail to agree on the third arbitrator within one month of accepting their appointment, the
person or institution administering the arbitration, if any, or the support judge will appoint the
third arbitrator.
(Article 1452, CCP.)
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Difficulties can arise in "multiparty arbitration", that is, when there are more than two parties involved in
the dispute. In these cases, each party may not be given an equal opportunity to participate in the
selection of the arbitrator(s), thereby potentially undermining the principles of fairness and equality.
This occurred in the Dutco case, an arbitration conducted under the aegis of the ICC. At the time, the
ICC considered it could resolve the situation by requiring two respondents to appoint one and the same
arbitrator (which the co-respondents eventually did under protest). Subsequently, the respondents
sought to annul the resulting award before the French courts. Ultimately, the Cour de cassation held that
requiring multiple defendants to jointly nominate one arbitrator was contrary to the public policy principle
of equality between the parties, thereby condemning the ICC's practice (Cour de cassation, first civil
chamber, Dutco construction v BKMI and Siemens, Cases Nos 89-18.708 and 89-18.726 (7 January 1992)).
Article 1453 of the CCP now provides that where there are more than two parties to the dispute and they
fail to agree on the constitution of the arbitral tribunal, the person or institution administering the
arbitration, if any, or the support judge must appoint the arbitrators (that is, the arbitral tribunal in its
entirety). Incidentally, following the Dutco decision, the ICC amended its rules along the same lines (see
Article 12(8), ICC Arbitration Rules 2012 (www.practicallaw.com/6-502-7911)).
Challenges
An arbitrator can be challenged on any of the following grounds, which apply to both domestic and
international arbitration:
Any circumstance that can affect his independence or impartiality (Article 1456, CCP).
Legal incapacity, refusal to act or resignation (Article 1457, CCP).
Unanimous consent of the parties (Article 1458, CCP).
If the parties do not all consent to the removal of an arbitrator on any one of these grounds, the matter
must be resolved within one month following the discovery of the circumstances that gave rise to the
challenge (Articles 1456 and 1458, CCP) by either:
The person or institution administering the arbitration, if any.
The support judge.
Arbitrators' duties and powers
Duties of independence, impartiality and disclosure
Arbitrators have a duty to be independent and impartial and to disclose any circumstance that can impact
on these two qualities (Article 1456, CCP). This duty of disclosure continues throughout the arbitration
(Article 1456, CCP).
French courts have adopted a strict but pragmatic view of the duty to disclose, requiring arbitrators to
reveal any circumstance that can affect their judgment and create in the parties' minds a "reasonable
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doubt" as to their impartiality and independence (Paris Court of Appeal, SA Fremarc v Socit ITM
Entreprises, Case No 2002/01208 (2 April 2003)).
For example, in the Tecnimont saga, the Paris Court of Appeal (in 2009), followed by the Reims Court of
Appeal (in 2011), set aside an ICC award because the chairman of the arbitral tribunal had not made a
full disclosure of the links between the law firm where he was working as "of counsel" and one of the
parties to the arbitration, which the courts found the chairman had a duty to investigate (see Paris Court
of Appeal, J&P Avax SA v Socit Tecnimont, Case No 07/22164 (12 February 2009), Cour de
Cassation, first civil chamber, Case No 09-12.716 (4 November 2010), Reims Court of Appeal, J&P Avax
SA v Socit Tecnimont, Case No 10/02888 (2 November 2011) (review by the Cour de Cassation
pending), and Legal updates, French Supreme Court reverses Court of Appeal decision to annul ICC
award (www.practicallaw.com/4-504-3144) and Reims Court of Appeal sets aside ICC award for
chairman's lack of independence (www.practicallaw.com/7-514-2915)).
In 2010, the Cour de cassation quashed two Court of Appeal decisions on the ground that the systematic
appointment of an arbitrator by companies of the same group created a "business stream" between the
arbitrator and that group of companies, which should have been fully disclosed (Cour de cassation, first
civil chamber, Somoclest Btiment v DV Construction, and Batard v Prodin, Cases Nos 09-68.997 and
09-68.131 (20 October 2010)). These two decisions were rendered in the context of domestic arbitration,
but the same principle applies in international arbitration.
The scope of disclosure is broad (covering both objective and subjective circumstances). However, the
courts have specified that the arbitrator is under no duty to disclose facts that are known to the parties, or
facts that can reasonably have no impact on the proceedings (Paris Court of Appeal, Centre Technique
des Industries Mcaniques v Socit SDT International, Case No 06/12878 (13 March 2008)).
A disclosure by the arbitrator entitles either party to request that arbitrator's revocation, subject to both
parties' consent or to the supporting institution's (or the support judge's) approval. However, if a party
knew of the circumstance that gave rise to the disclosure and did not oppose that arbitrator's
appointment or did not move to revoke him, that party will be precluded from raising lack of
independence or impartiality to later impeach that arbitrator or seek annulment of the resulting award
(Article 1466, CCP).
Procedural powers
Unless the parties agree otherwise, the tribunal has the power to determine the arbitral procedure as it
thinks fit (Article 1464, paragraph 1, CCP).
However, while the tribunal is not bound by the French CCP rules on ordinary court proceedings, it must
abide by a number of fundamental provisions (Article 1464, paragraph 2, CCP). These include Articles 4 -
10, 11 (paragraph 1), 12 (paragraphs 2 and 3), 13 - 21, 23 and 23-1 of the CCP, which primarily relate to
due process and other basic principles. These provisions apply only to domestic arbitration, although
commentators consider that some of them are equally applicable to international arbitration through
the "international public policy" exception (discussed in Awards: Grounds for challenge).
The arbitral tribunal can order any conservatory or provisional measures that it deems appropriate (which
may be subject to a pecuniary penalty (astreinte)). However, only courts can order conservatory
attachments and judicial security (Article 1468, CCP).
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evidence (which may be subject to a pecuniary penalty (astreinte)), as well as order the appearance of
any witness to provide oral testimony (Article 1467, CCP).
Confidentiality, expedition and loyalty
Article 1464 of the CCP provides that domestic arbitration proceedings are confidential (for the
arbitrators and the parties), unless otherwise agreed by the parties or provided by law. There is no
similar provision applicable in international arbitration, but commentators argue (based on conflicting
case law) that parties to international arbitration generally have (at least) privacy expectations that
should be protected. The relevant arbitration clause can (directly or by reference to arbitration rules)
impose a confidentiality obligation on the arbitrators and the parties.
Article 1464 of the CCP also provides that the parties and the arbitrators have a duty to act expeditiously
and loyally in the conduct of the arbitration proceedings. This rule applies to both domestic and
international arbitration.
Courts' powers in support of arbitration
Interim measures
Until the arbitral tribunal is constituted, French courts have the power to order any measures relating to
the taking of evidence as well as other provisional or conservatory measures (Article 1449, CCP). French
courts will only decline to use these powers if the parties expressly excluded recourse to these measures
or if these are otherwise forbidden in the applicable arbitral rules.
A party seeking a measure to preserve or establish evidence must apply to the President of the Court of
First Instance or of the Commercial Court (Tribunal de Commerce), who will rule on the application
through expedited proceedings (sur requte or en rfr). If the matter is urgent, other provisional or
conservatory measures can also be applied for and ordered through expedited proceedings (Article
1449, CCP).
Once the arbitral tribunal is constituted, the power to order conservatory or interim measures moves to
the arbitral tribunal. Under the previous legal framework, the parties could still ask the French courts to
order urgent interim measures. In contrast, the 2011 Decree seems to reserve this jurisdiction to the
arbitral tribunal. However, French courts retain exclusive jurisdiction to order conservatory attachments
or judicial security, to ensure satisfaction of a future award (Article 1468, CCP). In addition, recourse to
the support judge may be necessary to force execution of any measure ordered by the arbitral tribunal
that is not voluntarily complied with.
Stay of court proceedings
French law recognises the negative aspect of kompetenz-kompetenz, according to which the courts must
decline jurisdiction whenever a claim is brought in breach of an arbitration agreement that is
not "manifestly void or manifestly not applicable". However, the courts are prevented from raising this
jurisdictional objection on their own motion (Article 1448, CCP).
The arbitral tribunal also manages evidentiary matters. In this capacity, it may enjoin a party to produce
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Appointing and removing arbitrators
The French support judge can be asked to appoint or remove one or several arbitrators where the
parties cannot agree on their appointment and where the arbitration is not administered by any institution.
In domestic arbitration, the support judge is the President of the Court of First Instance (or of the
Commercial Court if the arbitration agreement provides for this) (Article 1459, CCP). Article 1459 of the
CCP lays down the rules to determine which Court of First Instance has territorial jurisdiction; typically (in
the absence of specific agreement of the parties), the Court of First Instance of the seat of arbitration.
In international arbitration (unless the arbitration agreement provides otherwise), the support judge is the
President of the Paris Court of First Instance if one of the following conditions is met:
The arbitration takes place in France.
The parties have agreed that French procedural law will apply to the arbitration.
The parties have expressly granted jurisdiction to French courts over disputes relating to the
arbitral procedure.
One of the parties is at risk of a denial of justice.
(Article 1505, CCP.)
In practice, the President of the Paris Court of First Instance is a senior judge, who has significant
experience in international arbitration.
Awards
Form, content and notification
The CCP sets out a number of formal and substantive conditions with which an award must comply.
In both domestic and international arbitration, the arbitral award must state the following:
The full names of the parties, as well as their domicile or corporate headquarters.
If applicable, the names of the counsel or other persons who represented or assisted the parties.
The names of the arbitrators who made it.
The date on which it was made.
The place where the award was made.
(Article 1481, CCP.)
In terms of content, the award must concisely set out the respective claims and arguments of the parties
and state the reasons on which it is based (Article 1482, CCP). This last requirement did not previously
exist in international arbitration, but was developed by the courts and codified in the 2011 Decree.
While these requirements are common to domestic and international arbitration, the consequences of
their breach are different. In domestic arbitration, a failure to state in an award the reasons on which it is
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based, the date on which it was made, or the names or signature of the arbitrator(s) is ground for
annulment (Article 1492, CCP). In contrast, none of these constitute grounds for annulment in
international arbitration.
Additionally, awards in domestic arbitration must be made by majority decision, at the risk of being
challenged before the courts (Articles 1480 and 1492, CCP), whereas in international arbitration, the
chairman of the tribunal can rule alone in the absence of a majority (Article 1513, CCP).
Domestic awards in both domestic and international arbitration must be notified by formal service
(signification), unless the parties agree otherwise (Articles 1484, paragraph 3 and 1519, paragraph 3,
CCP). This last proviso (a novelty introduced by the 2011 Decree) is generally understood to allow
notification in accordance with the arbitration rules chosen by the parties (for example, the ICC Rules
provide for notification by the ICC Court's Secretariat, see Article 34(1), ICC Arbitration Rules
2012 (www.practicallaw.com/6-502-7911)) (see Paris Court of Appeal, SAS ITM Entreprises et al. v SAS
Janville et al., Case No 13/05111 (23 April 2013)).
Correction and interpretation
Once an award is issued, the arbitral tribunal no longer has the power to rule on the claims adjudicated
in that award. However, at the request of a party, the tribunal may interpret the award, rectify clerical
errors and omissions, or even supplement the award if it failed to rule on a claim. In such case, the
tribunal can only rule after hearing the parties or giving them the opportunity to be heard (Article
).
Applications for correction or interpretation must be filed within three months of the award's notification
(Article 1486, CCP).
If the tribunal cannot be reconvened and if the parties cannot agree on the constitution of a new tribunal,
the power to rule on omitted claims is vested in the court which would have had jurisdiction had there
been no arbitration agreement (Article 1485, CCP). However, this solution only applies to domestic
arbitration. In international arbitration, the only available remedy would be to seek annulment of the
award or resist its enforcement on the basis that the arbitral tribunal did not comply with its mandate.
Challenges to awards
Provisions on challenges to arbitral awards differ substantially depending on whether the arbitration
proceedings are domestic or international.
Domestic or international proceedings
Awards in domestic arbitration are generally subject to actions to set aside or annulment proceedings
(recours en annulation) (see below). However, the parties can provide for a right to appeal the award,
which leads to broader judicial review (Article 1489, CCP). In contrast, awards in international arbitration
are only subject to actions to set aside and cannot be appealed (Article 1518, CCP).
Parties to an international arbitration can waive their right to bring an action to set aside an award (Article
1522, CCP). However, the right to bring an action to set aside an award in domestic arbitration is
mandatory, that is, it cannot be renounced, unless the parties had provided for a right to appeal (Article
1485, CCP
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1491, CCP). Where the right to set aside has been waived in international arbitration, the parties still
retain their right to appeal an enforcement order (Article 1522, CCP).
Another difference relates to the effect of an action to set aside, or a challenge to an enforcement order,
on the enforcement of an award. In domestic arbitration, enforcement of an award is stayed upon the
filing of an appeal or action to set aside or until the time limit for such an appeal or application has
expired, unless the award states that it is provisionally enforceable (Article 1496, CCP). By contrast,
Article 1526 of the CCP provides that in international arbitration, "[n]either an action to set aside an
award nor an appeal against an enforcement order shall suspend enforcement of an award". As a result,
an award is immediately enforceable even if it has been challenged, except where the Court of Appeal
suspends or adjusts the enforcement to preserve the rights of one of the parties (this was introduced in
the 2011 Decree).
Grounds for challenge
The CCP sets out an exhaustive list of grounds to set aside an award (or appeal an enforcement order,
see below) in international and domestic arbitration.
An award rendered in an international arbitration can be set aside if any of the following apply:
The arbitral tribunal wrongly upheld or declined jurisdiction.
The arbitral tribunal was not properly constituted.
The arbitral tribunal ruled without complying with the mandate conferred upon it.
Due process was violated.
Recognition or enforcement of the award is contrary to international public policy.
(Article 1520, CCP.)
The grounds for setting aside an award in a domestic arbitration are:
The arbitral tribunal wrongly upheld or declined jurisdiction.
The arbitral tribunal was not properly constituted.
The arbitral tribunal ruled without complying with the mandate conferred upon it.
Due process was violated.
The award is contrary to public policy.
The award failed to state the reasons upon which it was based, the date on which it was made, the
names or signatures of the arbitrator(s) having made the award; or the award was not made by
majority decision.
(Article 1492, CCP.)
The grounds for challenge in domestic arbitration therefore provide for additional circumstances in which
an award can be set aside.
Where the first ground (tribunal wrongly upheld or declined jurisdiction) is relied on, as explained above,
the Cour de cassation set a standard of strict scrutiny when checking an arbitral tribunal's decision to
uphold or decline its jurisdiction. (Cour de cassation, first civil chamber, Fondation Albert Abela Family
Foundation et. a. v Fondation Joseph Abela Family Foundation, Case No 08-20.563 (6 October 2010)).
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Where the second ground (tribunal not properly constituted) is relied on, the courts' review is in practice
limited to verifying that the appointment process was respected and that the arbitrators complied with
their duties of impartiality and independence. Lack of independence or impartiality is a ground often
invoked to challenge an award.
The third ground (tribunal ruled without complying with its mandate) covers situations where the tribunal
did not conform with the scope of the parties' claims (for example, it ruled on matters that were not within
its purview or awarded more than the parties were claiming), where the tribunal overstepped its powers
(for example, the tribunal ruled in equity, as amiable compositeur, without the parties' consent) or where
the tribunal rendered an award after the expiry of an agreed deadline.
Regarding due process (fourth ground), an award will be annulled whenever the tribunal relied on
evidence that was not subject to an adversarial debate between the parties (Cour de cassation, second
civil chamber, M. Jean-Joseph Richard et al. v Socit bretonne de btiment S.A., Case No 96-17.769
(30 September 1999)). For example, the Cour de cassation has held that an award should be annulled
where an arbitrator had conducted personal investigations, albeit on general information, without
informing the parties of those investigations (Cour de cassation, second civil chamber, Socit Duarib v
Socit Nouvelle des Etablissements A. et G. Jallais, Case No 96-21.391 (10 November 1998)).
However, a party will be precluded from invoking a violation of due process at the annulment stage if it
did not raise the issue before the arbitral tribunal when it had the opportunity to do so (Cour de
cassation, second civil chamber, Socit Radiologie et Imagerie Mdicale Pasteur Bergouignan v
Philippe Hummel, Case No 02-10.101 (20 November 2003)). Violation of due process is often relied
upon in conjunction with the public policy exception, which encompasses procedural irregularities.
The French courts construe the "public policy exception" (fifth ground) very narrowly, consistent with their
arbitration-friendly approach, by generally holding that:
"[] a public policy argument [] can be accepted only when the enforcement of the award
would violate in an unacceptable way our legal system, such violation having to affect in a
manifest manner an essential rule of law or a principle of fundamental importance []."
(Paris Court of Appeal, SA Thals Air Dfence v GIE Euromissile, Case No 2002/19606
(18 November 2004).)
Accordingly, to encourage recognition and enforcement of arbitral awards, French courts have annulled
awards on public policy grounds only in exceptional cases.
The public policy exception in international arbitration is based on the standard of international public
policy, whereas the same exception in domestic arbitration only refers to internal public policy. Although
there is no precise definition of what constitutes international public policy, this concept is traditionally
interpreted more narrowly by the courts than internal public policy, as it usually covers only fundamental
principles of the French legal system, as well as mandatory rules of French law that preserve the
essential political, social or economic interests of the state (lois de police).
Unlike in appeal proceedings, the court seised of an action to set aside an award cannot review the
factual and legal bases of an award (see, for example, Cour de cassation, first civil chamber, socit
Eiffage construction v socit Letierce et fils et a., Case No 05-12.395 (14 November 2006)). However,
when a violation of due process or public policy is alleged in support of an action to set aside, the court
will necessarily review the tribunal's reasoning.
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Applications to set aside an award must be filed before the Court of Appeal of the place where the award
was made, within:
One month of the award's notification if the notified party has its domicile or headquarters in mainland
France (Articles 1494 and 1519, CCP).
Two months if that party has its domicile or headquarters in a French overseas territory (Article 643,
1, CCP).
Three months if that party does not have its domicile or headquarters in France (Article 643, 2, CCP).
In practice, as awards in international arbitration proceedings are most often rendered in Paris, the Paris
Court of Appeal hears most applications to set aside.
Enforcement
Enforcement procedure (exequatur)
Applications to enforce awards rendered in France must be filed before the Court of First Instance of the
place where the award was made (Articles 1487 and 1516, CCP). Applications for awards not rendered
in France can only be filed before the Paris Court of First Instance (Article 1516, CCP).
Enforcement proceedings are conducted ex parte and decisions are rendered by a single judge by way
of enforcement orders (ordonnances d'exequatur) (Articles 1487 and 1516, CCP).
Enforcement applications must be filed with the award and arbitration agreement (original or
authenticated copy) (Articles 1487 and 1515, CCP). If the award is in a foreign language, the applicant
must provide a French translation (Article 1515, CCP).
Unlike an order granting enforcement, an order denying enforcement must state the reasons on which it
is based (Articles 1488 and 1517, CCP).
An order that denies enforcement can be appealed before the Court of Appeal having jurisdiction over
the Court of First Instance that issued the order, within:
One month of the award's notification if the notified party has its domicile or headquarters in mainland
France (Articles 1500 and 1525, CCP).
Two months if that party has its domicile or headquarters in a French overseas territory (Article 643,
1, CCP).
Three months if that party does not have its domicile or headquarters in France (Article 643, 2,
CCP). This rule applies to both domestic and international arbitration.
It is usually not possible to appeal an order granting enforcement of an award (in both domestic and
international arbitration) (Articles 1499 and 1524, CCP), unless either:
The award was rendered abroad (Article 1525, CCP).
The award was rendered in France in international proceedings, and the parties waived their right to
bring an action to set aside the award (Articles 1522 and 1524, CCP).
In any event, the application to set aside an award is deemed to constitute a challenge against the order
that ruled on its enforcement (Articles 1499 and 1524, CCP).
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In domestic arbitration proceedings, the recognition and enforcement of an award must not be manifestly
contrary to public policy (Article 1488, CCP). Article 1514 of the CCP provides a similar rule for
international arbitration but the standard is that of international public policy.
Grounds for resisting enforcement
The only recourse available against an arbitral award rendered abroad is an appeal against an order
granting its enforcement (Article 1525, CCP).
The grounds for resisting enforcement are the same as those for setting aside an award.
Appeals must be lodged with the Paris Court of Appeal, as the enforcement judge for foreign awards is
the President of the Paris Court of First Instance.
Effects of an award set aside in another country
Although most jurisdictions are likely to refuse enforcement of an award that has been set aside in
another country (as envisaged under Article V(1)(e) of the New York Convention), French courts have
enforced awards set aside at the seat of arbitration, based on Article VII of the New York Convention.
For example, in the Hilmarton case of 1994, the Cour de cassation held that:
"[] the award rendered in Switzerland is an international award which is not integrated in
the legal system of that state, so that it remains in existence even if set aside and its
recognition in France is not contrary to international public policy []" (Cour de cassation,
first civil chamber, Hilmarton v Omnium, Case No 92-15.137 (23 March 1994)).
The rationale behind this decision is that an arbitral award is not integrated into the legal system of the
country where the seat of arbitration is located, and that its annulment at the seat therefore has no
impact on its existence outside that particular legal system.
In PT Putrabali Adyamulia v Rena (Cour de cassation, first civil chamber, Case No 05-18.053 (29 June
2007)), the Cour de cassation confirmed this solution, further stating that an international award is not
associated with any national legal order:
"[] an international arbitral award, which is not anchored in any national legal order, is a
decision of international justice, the validity of which must be ascertained with regard to the
rules applicable in the country where its recognition and enforcement are sought []."
Key institutions
ICC International Court of Arbitration
The ICC Court of Arbitration was established in Paris in 1923 as the ICC's arbitration body. It is the most
prominent arbitration centre used in the world, and it has administered more than 19,000 cases, involving
parties and arbitrators from 180 countries.
France (Paris) is the most frequent seat for ICC arbitration.
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One of the defining characteristics of ICC arbitration is that the ICC Court oversees the entire arbitral
process and reviews all awards before they are issued, thereby ensuring a minimum standard of quality
and facilitating their enforceability.
For detailed discussion about ICC arbitration, see Practice notes, ICC arbitration (1998 Rules): a step by
step guide (www.practicallaw.com/6-382-2040) and ICC Arbitration (2012 Rules): a step by step
guide (www.practicallaw.com/5-508-7496).
French Arbitration Association
The French Arbitration Association (Association Franaise de l'Arbitrage) (AFA) was created in 1975 to
promote arbitration in France and abroad, and to administer arbitrations under its arbitration rules. The
AFA's Arbitration Committee, which comprises arbitration practitioners from various countries, supervises
the conduct of arbitrations administered by the AFA and reviews awards in draft form prior to their
issuance to the parties.
French Commission on Arbitration
The French Commission on Arbitration (Comit Franais de l'Arbitrage) (CFA) was created in 1953 to
promote the study and development of arbitration in France. It is not an arbitral institution; it is an
independent institution, bringing together a wide variety of arbitration practitioners and academics. It
publishes the Revue de l'Arbitrage.
International Arbitration Chamber of Paris
The International Arbitration Chamber of Paris (Chambre arbitrale internationale de Paris) (CAIP) was
originally established in 1926 to settle agricultural trade disputes. Since then, it has extended its activity
to cover all sectors of the economy and is used to arbitrate and mediate disputes arising from all types of
domestic and international business transactions. The CAIP has its own set of arbitral rules.
Paris Maritime Arbitration Chamber
The Paris Maritime Arbitration Chamber (Chambre arbitrale maritime de Paris) (CAMP) was created in
1966 to arbitrate disputes in maritime shipping. It has published a set of rules of arbitration and maintains
a list of potential arbitrators.
Paris, the Home of International Arbitration
Paris, the Home of International Arbitration (Paris, Place d'Arbitrage), an association of arbitration
practitioners and academics, recently drafted the Paris Arbitration Rules (Rglement de Paris), a set of
ad hoc arbitral rules to be used as an alternative to UNCITRAL and institutional rules (see Legal update,
Paris Arbitration Rules launched (www.practicallaw.com/4-525-8417)).
This note reflects the opinion of the authors and not that of White & Case LLP.