• Before the Constitution of the Arbitral Tribunal

 

According to Article 1449 of the French Code of Civil Procedure

(the CCP), as adopted further to the 13 January 2011 Decree on

arbitration, which is applicable to domestic and international arbitration,

“the existence of an arbitration agreement, insofar as the arbitral tribunal

has not yet been constituted, shall not preclude a party from applying to a

court for measures relating to the taking of evidence or provisional or

conservatory measures”.

 

The Report to the Prime Minister issued on 14 January 2011, prior

to the adoption of the 13 January 2011 Decree, provides that Article

1449 “confirms the established case law, according to which the parties

may refer to the state courts on the basis of Article 145 and, in any case

of urgency, apply to obtain provisional or conservatory measures”.

 

Such case law provides that, before the constitution of the arbitral

tribunal, courts may order provisional and conservatory measures,

subject to the condition of urgency (CA Paris, 14e ch. B, 17 Nov.

2006, Rev. arb., 2006.1085).

 

Courts may also order on a provisional basis the payment of a

certain amount of money when the claim appears manifestly grounded

(Art. 809 para. 2 CCP). Such measures, as other provisional measures in

presence of an arbitration agreement, may only be ordered before the

constitution of the arbitral tribunal (Cass. civ. 2e, 18 June 1986, Rev.

arb., 1986.565, note G. Couchez; Cass. civ 2e, 20 March 1989 and Cass.