The American policy of enforcing arbitration agreements in accordance with the intent of the parties1 as interpreted by the courts has now gone so far that, for the last few years, some arbitration agreements have provided for a more expansive judicial review than that available under the United States Federal Arbitration Act.2
The consequences of this heightened judicial review go directly against a general policy of American courts, which originally was to favor the enforceability of awards. At the same time, the enforceability of these agreements draws support from the policy of the American courts to respect the agreement of the parties, which requires deference to their choice of private dispute resolution.
Numerous comments have already been written on this topic, and the purpose of this article is not to discuss further the American position.3
Rather, this article will analyze the issue from the point of view of another country, France, whose policy towards arbitration is close to that of the United States. Both countries share a common policy of favoring arbitration,4 have a large number of cases on the enforcement of arbitral awards, and give deference to the parties’ autonomy. The French courts, however, will not enforce agreements asking for greater judicial review than that available under French law.
What follows is a brief description of the French position on this issue in order to demonstrate how the question of contracting for expanded judicial review is handled in France, both in the domestic and international arenas, and to analyze the reasons under French law that its courts refuse to enforce such agreements.