Originally from European International Arbitration Review (EIAR)

Two decisions handed down by the Paris Court of Appeal and by the Cour de Cassation (French Supreme Court) at the end of 2011, confirmed that French law considers international arbitration to be independent from domestic legal systems. As such, international arbitration is seen as largely insulated from the application of national laws and control by domestic courts.

One of the particularities of French arbitration law is that it distinguishes between domestic and international arbitrations. While certain provisions of the French Code of Civil Procedure apply to domestic and international arbitrations alike, a number of provisions are specific to international arbitration. Article 1504 of the Code of Civil Procedure, which introduces the section on international arbitration, provides that “an arbitration is international when international trade interests are at stake”. Domestic arbitration is seen as forming part of the French legal system, if only because domestic tribunals operate wholly within the domestic arena. International arbitrations, however, are described as being “autonomous”. In 1965, Professor Fouchard was the first academic to write about what he perceived to be a developing trend: the growing autonomy of international commercial arbitration.1 Almost 50 years later, not only has this principle become one of the key pillars of French arbitration law, but French judges are continuing to develop an ever-expanding view of the autonomy of international arbitration.

Initially applied to arbitration agreements only, this theory of international arbitration developed in the 1980s and 1990s to apply with respect to the choice of law applicable to a dispute and to international arbitration awards. The recent decision of the Supreme Court in Elf Aquitaine and Total v. Mattei and others expands this concept even further, finding—for the first time—that an international arbitral tribunal is an autonomous international judicial entity.