France - Part I - The Review of International Arbitral Awards
Dominique Hascher, Judge, Court of Appeal of Reims; formerly judge at the Paris Court of Appeal.
The French concept of arbitration is based on the premise that there is an arbitral legal order, which is distinct from the legaln order of individual States, including that of the seat of the arbitration or that of the States in which the award is to be enforced. It is this arbitral legal order – and no national legal order – that confers its juridicity to arbitration.1 The award is a decision of international justice2 and is res judicata.3 This res judicata, however, is not final: an application for the award to be set aside can be filed against the international award rendered in France4 whilst an award rendered abroad is subject.
The type of review carried out on an award in France is predicated on this representation of arbitration, as is the case for other judicial interventions in the context of arbitration. Awards are presumed to be valid. In order to rebut this presumption, a party resisting enforcement of the award or seeking its setting aside has to prove that the award does not comport with the requirements of Article 1502 of the CCP (which alone provide grounds upon which to deny a request for recognition, for enforcement or upon which to set aside the award; the parties do not have the option of contracting out of the list of grounds set forth therein).
The review of the award is of a disciplinary nature. The case submitted to teh arbitrators cannot be reheard; the cout reviewing the award is not there to re-examine the dispute itself. Its role is limited to reviewing the award.7 An international arbitral tribunal cannot be considered to be a court of first instance; the merits of the dispute are not to be examined again by the courts reviewing the award. There is therefore no substantive review, i.e., the courts are not supposed to determine whether the arbitrators' decision was right or wrong.