France - Chapter III.5 - Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition

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Practitioner's Handbook On International Arbitration And Mediation- 3rd Edition

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France
Philippe Sarrailhe
 

France, the most popular site for ICC arbitrations and a party to the New York
convention, has a modern set of laws governing international arbitration.
International arbitrations in France are specifically governed by articles 1504 to
1527 of the Code of Civil Procedure, supplemented by the general provisions in
the civil code and the code of judicial organization. Under French law, there is
no obligation for the parties in arbitration proceedings to be represented by a
lawyer. And like many jurisdictions with modern arbitration laws, French law
considers the arbitration agreement to be separate from the contract in which it
is contained, and recognizes the arbitral tribunal’s authority to decide upon its
own jurisdiction. Further, French law has narrowed the scope of non-arbitrable
disputes, barring arbitration of only certain disputes concerning employment
contracts, the validity of intellectual property rights, competition law, and
bankruptcy.
French law imposes no restrictions on the method of appointment or the
identity of arbitrators, but looks to the arbitrators’ national law to determine the
arbitrators’ capacity to serve. French law also affords considerable latitude in
determining the scope of admissible evidence and the manner in which it can be
presented at the hearing. In another feature common to modern arbitral venues,
the fact that an arbitration proceeding is pending does not preclude application
to the French courts for conservatory measures. And in emergencies, before the
arbitral tribunal is seized, a party may apply to a court to order a party to
perform its obligations under the contract. Finally, enforcement of an arbitral
award rendered in France may be resisted on any or all of five narrow grounds.

§ 5.01 Introduction and Definitions

France has chosen to be at the forefront in its support for arbitration
as a means of resolving disputes related to international commerce. The
French legislature has enacted a set of laws specifically pertaining to
international arbitration and the interpretation of those and other
applicable laws by France’s judiciary. The impact of those laws is to
limit the scope of judicial interference in international arbitration, while
not only complying with French and international public policy, but also
demonstrating France’s respect for parties’ intent to remove resolution of
a dispute from the purview of state judicial system.

[1] Distinction between Domestic Arbitration and
International Arbitration

As early as 1980 and 1981, France enacted a modern set of laws
governing arbitration. In January 2011, this law was reformed to enhance
its clarity and increase its efficiency. The primary feature of the French
statutory regime is the distinction made between domestic and
international arbitration. The new law confirms this distinction and
codifies the traditional broad definition of an international arbitration as
one “which implicates interests of international commerce” (new Article
1504). The law allows the parties and/or the arbitrators to remove an
international arbitration from the ambit of French law applicable to
domestic arbitrations, entitles the parties to waive at any time their right
to challenge the award by way of annulment and limits the scope of
review of international arbitration awards.

[2] Statistics

We cannot assess the exact number of arbitral proceedings that take
place in France each year since arbitration proceedings are confidential.
But, according to the statistics of the International Chamber of
Commerce (the ICC), France is a popular site for international
arbitrations in general and the most favored site for ICC arbitrations.
Indeed, France was chosen as the site for 412 of the 2099 awards
scrutinized by the Court of the ICC between 2006 and 2009, with
Switzerland coming in second with 394 arbitrations during the same
period.