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Commercial Arbitration

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France

Jean-Christophe Honlet , Bart Legum, and Anne-Sophie Dufêtre
Dentons

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  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
  2. Yes, the New York Convention entered into force in France on 24 September 1959. France had initially made the two reservations permitted by the Convention: the ‘commercial’ and reciprocity reservations. The commercial reservation was withdrawn on 27 November 1989. The existence of the remaining reciprocity reservation is of no practical significance, however, because, by virtue of article VII(1) of the Convention (“[t]he provisions of the present Convention shall not (…) deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon”), the Convention plays a residual role altogether in France. Article 1520 (applying by reference to articles 1524 and 1522) of the French Code of Civil Procedure (CCP), is more favourable to recognition and enforcement of foreign awards than the Convention.

  3. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
  4. France is also a party to the 21 April 1961 European Convention on International Commercial Arbitration.

  5. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
  6. French statutory provisions regarding arbitration are found in Book IVof the CCP, which comprises a Title I regarding domestic arbitration and a Title II (articles 1504 et seq.) regarding international arbitration. Such provisions entered into force on 1 May 2011 following the implementation of Decree No. 2011-48 of 13 January 2011 (the “2011 Reform”), which replaces prior provisions enacted in 1980 and 1981. The provisions applicable to international arbitration are not based on the UNCITRAL Model Law but they do not materially differ from it. They apply to all international arbitrations with their seat in France. The 2011 Reform is designed to further modernise international arbitration in France and codify a number of solutions adopted by case law over the past thirty years, in order to make French international arbitration law more accessible to international users. Case law will continue to play an important part,however. All of the comments in this paper relate to French law of international arbitration, as opposed to domestic arbitration.

    Pursuant to article 1504 CCP, an arbitration is international ‘when international trade interests are at stake.’ It is necessary and sufficient in that regard that the economic operation concerned involves movements of goods or funds beyond borders, irrespective of the nationality of the parties, the applicable law or the seat of arbitration.

    Article 1509 CCP further provides that if the arbitration agreement is silent on the law applicable to the procedure, the arbitrator will determine the procedure either directly or by reference to arbitration rules or, absent any such reference, procedural rules. Such a provision gives broad procedural discretion to arbitrators. It also means that French law does not necessarily govern the procedure if the arbitration is seated in France.

  7. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
  8. France hosts several important arbitral institutions. First and foremost, it is the home of the International Court of Arbitration of the International Chamber of Commerce (ICC). The French Arbitration Association (AFA), the Centre of Mediation and Arbitration of Paris (CMAP) and the Arbitration Chamber of Paris are also active. There are a number of other regional institutions. These bodies can act as appointing authorities if so designated by the parties. The World Bank’s offices in Paris also host a number of ICSID (International Centre for the Settlement of Investment Disputes) hearings each year.

  9. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
  10. Yes, numerous arbitrations administered by foreign arbitral providers are seated in Paris or elsewhere in France.

  11. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
  12. French courts have a vast body of experience in relation to international arbitration and have played a strong role in France’s recognition as one of the most arbitration-friendly jurisdictions in the world. In Paris, a specific chamber of the Paris Court of Appeal deals with international arbitration cases. Since most international arbitrations seated in France are seated in Paris, including many ICC arbitrations, that chamber will ultimately have jurisdiction to hear any challenges brought against such awards, as well as enforcement actions in Paris. If a further challenge is made before France’s highest court in civil and commercial matters, the Cour de cassation, the first chamber of that court will hear the matter.

    Agreement to arbitrate

  13. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
  14. Article 1507 CCP provides that the international arbitration agreement is not subject to any requirements as to its form. There is therefore no particular requirement for an arbitration agreement to be valid and enforceable, other than the parties having consented to it. An agreement in writing is however always useful in evidencing the existence of consent to arbitration. French law recognises international arbitration clauses as valid in principle, without having regard to conflicts of law principles (Civ. 1, 20 December 1993, Dalico, Bull. 1993, I, No. 372). Arbitration agreements can cover future disputes.

  15. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
  16. There are few non-arbitrable disputes under French law of international arbitration, such as disputes related to family law or the law of successions. Certain types of public law matters remain non-arbitrable although the scope of non-arbitrability of public law matters in an international context has been considerably reduced. Most sensitive economic matters, though closely connected to public policy, such as antitrust, securities law, intellectual property, embargoes, or consumer rights are arbitrable, subject to the post-award control by the courts of the application of international public policy. The Paris Court of Appeal, in a 28 February 2008 decision (Rev. arb. 2009, 168), even went as far as admitting that disputes regarding the validity of patents are arbitrable. Certain aspects of bankruptcy law are also arbitrable.

  17. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
  18. Two situations should be distinguished. Third parties may be bound by an arbitration clause in circumstances when they have participated in the negotiation, performance or termination of an agreement containing an arbitration clause. In particular, in a decision of 27 March 2007, the Cour de cassation held that the effect of the international arbitration clause extends to the parties directly involved in the performance of the contract and the resulting disputes(Case No. 04/20842, see also the much commented decision of the Paris Court of Appeal in Dallah v Pakistan of 7 February 2011, Case No. No. 09/28533). In contrast, in a 2011 decision, the Cour de cassation for instance held that the Arab Republic of Syria was not bound by an arbitration clause to which it was not a signatory (Civ. 1, 29 June 2011, Case No. 09-17346). Much depends on the specific circumstances of each case. This is a situation of extension of the arbitration clause. They may also become bound by an arbitration clause in situations of assignment of rights. Third parties may be joined in the arbitration process in certain circumstances, provided that they have consented to it, as well as the other parties participating in the arbitration and the tribunal. The principle of equality of all parties in the designation of the arbitrators must also be respected (see question 16).

  19. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
  20. Consolidation raises complex questions and may arise if the arbitration clauses in the contracts giving rise to the separate arbitrations are compatible (eg, same seat, same number of arbitrators, same language, same designation of institution), thus allowing to respect the consent of all parties to the arbitration. The principle of equality of all parties to the consolidated arbitrations in the designation of the arbitrators must be respected. In a series of recent decisions, the Paris Court of Appeal refused to set aside an award rendered in consolidated arbitrations, ruling that the arbitrators respected their mission where the parties had filed consolidated submissions and failed to object to consolidation during the arbitral proceedings (see Paris Court of Appeal, 22 October 2009, Case No. 08/13030; 5 November 2009, Case No. 08/12816; 17 December 2009, Case No. 08/15208).

  21. 11.

    Groups of companies
    Is the 'group of companies doctrine' (or any other basis for piercing the corporate veil) recognised in your jurisdiction?

  22. The “group of companies doctrine” is not recognised as such under French law but is often associated with French law because of the ICC Interim Award No. 4131 of 23 September 1982 (Dow Chemicals v Isover Saint Gobain) rendered by a prominent tribunal composed of a Dutch chair and two French co-arbitrators. The Paris Court of Appeal rejected the challenge against that award. Similar cases followed. France is often said to be one of the friendliest jurisdictions in terms of “extending” arbitration clauses to non-signatories. This remains a rare occurrence, however. The existence of a group of companies is not in itself a sufficient reason to pierce the corporate veil. French law in the vast majority of cases respects the independence of legal personalities. The intent of the non-signatories within the group to be bound by the arbitration clause must be shown, although it can be implied from the non-signatories’ conduct in certain cases. Piercing the corporate veil is also possible in case of fraud.

  23. 12.Separability
    Are arbitration clauses considered separable from the main contract?
  24. Yes, French law has long adopted that position (Civ. 1, 7 May 1963, Gosset, Bull. 1963, No. 246; Civ. 1, 4 July 1972, Hecht, Bull. 1972, I, No. 175). Since the 2011 Reform, the principle is now expressly set out in article 1447 CCP.

  25. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
  26. French law accords great importance to the principle of compétence-compétence. Based on article 1448 CCP, a French court will grant priority to an arbitral tribunal to decide whether it has jurisdiction to hear a particular case, unless the arbitration agreement is manifestly null or inapplicable to the case, an exception which is narrowly construed.Article 1465 CCPfurther provides that the arbitral tribunal has exclusive jurisdiction to rule on objections to its jurisdiction.

  27. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
  28. There are no specific requirements when it comes to drafting an arbitration clause. The simpler, the better. The clause should provide for consent to arbitration, as opposed to litigation before domestic courts. Although not mandatory, it is preferable to provide for the seat and language of the arbitration. For international arbitrations seated in France, since the 2011 Reform, it would also be wise to address questions of confidentiality, i.e. whether the arbitration is confidential and if so, to what extent (existence of the arbitration, pleadings, documents, award, etc.), and if the arbitration is deemed confidential by the parties, the sanctions for a breach of confidentiality (see below question 47).

  29. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
  30. To the extent that most arbitrations are not publicly known, there are no published statistics on institutional versus ad hoc arbitrations. Both institutional and ad hoc arbitrations are common in France (including for the latter under the UNCITRAL Rules).

  31. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
  32. The principle of equality of the parties in the appointment of the arbitrators is paramount under French law (Civ. 1, 7 January 1992, Dutco, Bull. 1992, I, No. 2). Great caution in drafting the arbitration clause must be exercised in this respect. In Dutco, two respondents had been jointly requested by the ICC to nominate an arbitrator, whereas there was a single claimant. Since the interests of both respondents were not aligned in the case, the Cour de cassation held that “the principle of equality of the parties in the designation of the arbitrators is a matter which concerns public policy, which can only be waived after the dispute has arisen”. The Dutco decision led to an amendment of the Rules of Arbitration of the ICC in 1998 (see article 10(2) of the 1998 ICC Rules of Arbitration).Article 1453 CCP provides that if there are multiple parties who fail to agree on the procedure for constituting the arbitral tribunal, the person responsible for administering the arbitration (i.e. the arbitration institution) or, where there is no such person, the judge acting in support of the arbitration (i.e. the President of the Paris Tribunal de grande instance), shall appoint the arbitrators.

    Commencing the arbitration

  33. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
  34. Arbitral proceedings are typically commenced either by sending a request for arbitration to the respondent, or, if a specific procedure was agreed in the arbitration clause, for instance requesting the request to be sent to an arbitral institution, by following that procedure. There is no specific limitation period under French law for the filing of the request for arbitration. The applicable statute of limitations is that of the law governing the merits of the case. If the arbitration clause provides for a mandatory negotiation period before initiating arbitration, the terms of the clause must be adhered to. Otherwise, the arbitration may be held inadmissible.

    Choice of law

  35. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
  36. Article 1511 CCP provides that the arbitrator shall resolve the dispute in accordance with the rules of law chosen by the parties and, in the absence of such a choice, in accordance with the rules of law he or she considers appropriate. In all cases the arbitrator shall take trade usages into account. Thus, arbitrators have a lot of flexibility when determining the law applicable to the merits. In the absence of a choice of law clause, they may for instance determine the applicable law directly, without following a conflict of laws approach.

    Appointing the tribunal

  37. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
  38. The parties are free to choose their arbitrator. Pursuant to article 1452 CCP, the parties’ agreement and procedure in that respect must be followed. The arbitrators must be, and remain, independent from the parties and impartial. As noted above, the principle of equality of the parties in appointing arbitrators is a public policy principle. In a Dutco situation described in question 16, an arbitral institution or a court may therefore be called upon to appoint the entire tribunal on behalf of the parties in order to preserve that equality. An arbitrator must be capable of exercising legal rights. This is not a requirement of French law but it results from the fact that the arbitrator must be capable of entering into an arbitration contract with the parties for the purposes of resolving their dispute, a question that is normally governed by the law governing the arbitrator’s personal status.

  39. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
  40. Yes, non-French nationals can act as arbitrators in arbitrations seated in France or where hearings are held in France. There are no specific immigration or other requirements.

  41. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
  42. The arbitration agreement may designate the arbitrators or provide for the conditions of their designation, either directly or by reference to arbitration rules. Pursuant to article 1452 CCP, disputes relating to the constitution of the arbitral tribunal shall be resolved, if the parties cannot agree, either by the arbitral institution designated in the arbitration clause or, absent applicable arbitration rules, by thejudge acting in support of the arbitration, i.e. the President of the ParisTribunal de grande instancein the case of international arbitrations.

  43. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
  44. Arbitrators are afforded some relative immunity from suit in France, like judges. Wilful or gross misconduct, fraud or denial of justice will trigger their liability while simple negligence will not (e.g., Paris Court of First Instance, 16 September 2009, Case No. 06/10155). On 22 January 2009, the Paris Court of Appeal also held that the exclusion of liability included in article 34 of the 1998 ICC Rules of Arbitration, which was intended to apply inter alia to arbitrators, was unenforceable as a matter of French law (Case No. 07-19492). Actual suits against arbitrators are rare, however.

  45. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
  46. The principal arbitration institutions in France provide for fundholding services. To the extent arbitrators enter into an agreement with the parties for the purposes of resolving their dispute, they are entitled to be paid. If the parties refuse to pay the reasonable fees and expenses requested by arbitrators or the institution, the arbitrators may suspend their work and, in extreme cases, resign.

    Challenges to arbitrators

  47. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
  48. There is no specific statute providing for the grounds for challenge of an arbitrator. Case law holds that these grounds are the same as for judges, namely lack of independence or impartiality. In addition, an arbitrator may be challenged for failing to possess a specific quality or attribute set out in the arbitration agreement, such as speaking a particular language. Articles1456(3) and 1457(2) CCPprovide that disagreements as to a challenge or default of an arbitrator shall be brought before the President of the Paris Tribunal de grande instance, for international arbitrations seated in Paris. Ifapplicable, arbitration rules such as the ICC Rules of Arbitration must be followed regarding challenges before the institution. We are not aware of any French decisions based on the IBA Guidelines on Conflicts of Interest in International Arbitration.

    Interim relief

  49. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

  50. A broad spectrum of interim measures are available from the arbitral tribunal (once it is constituted) and from courts (before such constitution) relating for instance to the freezing of assets, preservation of evidence or the appointment of an expert. Anti-suit injunctions, however, are not available in France.

  51. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
  52. There is no French law provision in favour of or against security for costs. Ordering security for costs is a rare occurrence in international arbitrations seated in France. We are not aware of French courts having allowed a party to obtain such provisional relief.

    Procedure

  53. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?

  54. Pursuant toarticle 1520 CCP, the arbitrators must respect the terms of their mission, due process (principe du contradictoire) and “international public policy” in all cases (the latter two being closely related in procedural matters), subject to the annulment or refusal of enforcement of the award. This provision requires in particular that the parties each have an equal opportunity to present their case and to be heard. It also requires that arguments which may be raised by the tribunal on its own motion must be submitted to the discussion of the parties before the award is rendered. Further, pursuant to article 1510 CCP, the arbitrators must ensure that the parties are treated equally and must uphold the principle of due process. The principle of equality of the parties in the designation of the arbitrators is also a mandatory principle (see question 16). Moreover, both parties and the arbitrators shall act diligently and in good faith in the conduct of the arbitral proceedings (article 1464(3) CCP). In particular, a party which fails to object to an irregularity before the arbitral tribunal in a timely manner shall be deemed to have waived its right to avail itself of such irregularity (article 1466 CCP). This provision has been described assome kind ofFrench “estoppel” but is in fact closer to a waiver of rights.

  55. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
  56. The institution or the courts, depending on whether the arbitration is institutional or ad hoc, will nominate the arbitrator in lieu of the defaulting party (see question 21). The arbitral proceedings will proceed and an award will eventually be rendered even if the respondent fails to participate in the arbitration. French courts have long refused to set aside an award rendered in the absence of the respondent where the latter was duly informed of the various stages of the proceedings, had an opportunity to participate in the arbitration and chose not to.

  57. 29.Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?
  58. Pursuant to article 1467 CCP, the arbitral tribunal shall take all necessary steps concerning evidentiary matters, which includes calling any person to provide testimony or enjoining a party to produce evidence. A broad range of evidence is generally admissible (written or oral evidence, expert evidence, etc). The IBA Rules on the Taking of Evidence in International Arbitration are often taken into account as guidelines by arbitral tribunals when they are not expressly adopted by the parties.

  59. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
  60. One needs to distinguish before and after the arbitral tribunal is constituted. Pursuant to article 1449 CCP, if the arbitral tribunal has not yet been constituted, an application may be made to the President of the Tribunal de grande instance or of the Tribunal de commerce who shall rule on measures relating to the taking of evidence in accordance with the provisions of article 145 (e.g., broad pre-arbitration investigatory powers, including the forced production of documents and the appointment of an expert by the court in technical matters).Such evidence may subsequently be used in the arbitration. Once the arbitral tribunal is constituted, pursuant to article 1469(1) CPC, if a party to the arbitration intends to rely on an official (acte authentique) or private deed (acte sous seing privé) to which it was not a party, or on evidence held by a third party, it may, upon leave of the arbitral tribunal, have that third party summoned before the President of the Tribunal de grande instance for the purpose of obtaining a copy thereof or the production of the deed or item of evidence.Application shall be made, heard and decided as for expedited proceedings (référé). Penalties may be attached to the court’s orders. In practice, it was extremely rare for the parties to seek the assistance of French courts in evidentiary mattersat the arbitration stage (in contrast to the pre-arbitration stage, where the appointment by the court of an expert is frequently requested for instance). However, this may now changeat the arbitration stage as well, on the basis of theabove provisions, which are a product of the 2011 Reform.Finally, pursuant to article 1470 CCP, specific provisions apply to requests for the verification of handwriting or claims of forgery of documents.

  61. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
  62. Pursuant to article 1467(3) CPC, if a party is in possession of an item of evidence (including documents), the arbitral tribunal may enjoin that party to produce it, determine the manner in which it is to be produced and, if necessary, attach penalties to such injunction. The IBA Rules on the Taking of Evidence in International Arbitration are often followed in practice. Whether a specific procedure will be retained will generally depend on the nationality of the parties, their counsel and the arbitrators, not whether the arbitration is seated in France. The parties are at liberty to agree to any procedure in this respect.

  63. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
  64. No, although it is common and practically always accepted if a party insists upon such a hearing.

  65. 33.Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?
  66. Yes, French law has no difficulty with this. Hearings and procedural meetings may also be conducted through any communication means, such as videoconference for instance.

    Award

  67. 34.Majority decisions
    Can the tribunal decide by majority?
  68. Yes. Absent another agreement of the parties, article 1513 CCP expressly provides for majority decisions. Article 1513 even goes beyond this.If there is no majority, the Chair of the arbitral tribunal shall rule alone.

  69. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
  70. Issues of damages and types of remedies available are either governed by the law applicable to the merits of the case or the procedure, which will not necessarily be French law even for international arbitrations seated in France (see question 3). If French law applies to the merits or the procedure, there are no express prohibitions against any specific form of relief to be granted in international arbitration. There is a debate though as to whether relief for future and hypothetical breaches can be obtained.

  71. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
  72. Nothing under French law prevents an arbitrator from expressing a dissenting opinion, provided that the arbitrator does not violate the confidentiality of the arbitral deliberations (protected byarticle 1479 CCP). There is a tendency among arbitrators in France to foster unanimous awards and avoid dissenting opinions if possible.

  73. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
  74. French law of international arbitration does not impose any requirement other than those imposed by the arbitration agreement or arbitration rules to which it may refer. This being said, article 1481 CCP lists the information that the award shall normally contain: the full names and addresses of the parties, the names of their counsel as the case may be, the names of the arbitrators, the date and place where the award was made. Article 1482 further provides that the award shall summarise the respective claims and arguments of the parties, as well as the reasons upon which it is based. The award should be signed by all the arbitrators.However, if a minority among them refuses to sign, the others shall so state in the award. In case the Chair rules alone and the other arbitrators refuse to sign, theChair shall so state in the award, which only he or she shall sign (article 1513 CCP).It is significant, though, that pursuant to article 1520 CPC, failure by the arbitral tribunal to comply with the above provisions does not ipso jure entail annulment or refusal to enforce an international award made in France. This is in contrast to a domestic award.

  75. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
  76. There are noprovisions regardingtime limits for the making of an international award. Where such a time period applies (for instance in ICC arbitration), article 1463(2) CCP provides that the time limit may be extended by agreement between the parties or, where there is no such agreement, by the judge acting in support of the arbitration, i.e. the President of the Paris Tribunal de grande instance. It is implicit that where an institution has been granted by the parties the power to itself extend the time limit, such extension shall be requested from the institution.Furthermore, pursuant to article 1472 CCP, the arbitral tribunal may stay the proceedings where necessary.Applications for the interpretation and correction of an award shall normally be filed within three months of notification of the award and the arbitral tribunal shall render its decision within three months of the application, unless this time limit is extended (article 1486 CCP). Again, these provisions apply absent another agreement of the parties, which may be found in institutional arbitration rules for instance.

    Costs and interest

  77. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the 'loser pays' rule generally apply in your jurisdiction?

  78. Parties are able to recover fees paid and costs incurred. The arbitral tribunal has broad discretion to choose the procedural rules or law applicable to that question (see question 3). Assuming that that tribunal determines that French law governs the procedure, there is no “loser pays” rule. However, it is frequent that the winning party gets its legal costs and expenses if they are reasonable.

  79. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
  80. Interest is generally governed by the law applicable to the merits. Assuming that French law is the applicable substantive law, interest can be included on the principal claim and costs. There is an interest rate fixed by statute, which is revised every year and should apply unless a different rate is required to be applied by the agreement.

    Challenging awards

  81. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
  82. International awards made inarbitrations seated in France cannot be appealed. Pursuant to article 1518 CCP, they may only be challenged through an action to set aside the award.

  83. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
  84. Based on article 1520 CCP, an international award made in France may only be challenged on the following five limitative grounds (article 1520 is substantially identical to prior article 1502):

    1. where the arbitral tribunal wrongly upheld or declined jurisdiction; or

    2. where the arbitral tribunal was not properly constituted; or

    3. where the arbitral tribunal ruled without complying with the mandate conferred upon it; or

    4. where due process was violated; or

    5. where recognition or enforcement of the award is contrary to international public policy.

    Pursuant to article 1502 CPC, it is also possible in limited circumstances including fraud to submit application for revision of an arbitral award. If the arbitral tribunal cannot be reconvened, the application shall be made before the Court of Appeal which would have jurisdiction to hear an action to set aside the award.

  85. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
  86. Yes. According to article 1522 CCP, the parties may, at any time, expressly waive their right to bring an action to set aside the award. Such a waiver must expressly reference the action to set aside an award and be complete, i.e. one cannot waive the right to set aside an award in some but not all the cases listed in article 1520 CCP (Paris Court of Appeal, CME, 3 April 2014, Case No. 13/22288).  This is unlike Swiss law for instance (see article 192-1 LDIP). Where such a right has been waived, the parties nonetheless retain their right to appeal an enforcement order.

    Enforcement in your jurisdiction

  87. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
  88. French courts have repeatedly agreed to enforce arbitral awards in France which were annulled at the place of arbitration in other countries. The only test in this respect is whether the criteria set out by French law for enforcement of foreign arbitral awards (article 1520 CCP) are met (see, e.g., Civ. 1, 9 October 1984, Norsolor, Bull. 1984, I, No. 248; Civ. 1, 23 March 1994, Hilmarton, Bull. 1994, I, No. 104; Civ. 1, 29 June 2007, Putrabali, Bull. 2007, I, No. 250). French law is more favourable in this respect than the New York Convention and, by virtue of the New York Convention itself (article VII), applies preferentially.

  89. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
  90. French courts afford great deference to arbitral awards. In particular, no review of the merits of the award will take place before the courts, which will also narrowly construe the ‘public policy’ exception which, in most countries, permits to set aside awards at the place of arbitration. As a result, annulments by French courts are, and should remain, a rarity.

  91. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
  92. French law recognises immunity from execution as a defence to enforcement of an award against a State. Such immunity can be waived, however. In a decision of 6 July 2000 (Bull. I, No. 207), the Cour de cassation held that the State of Qatar, by agreeing in an arbitration clause to execute the award in accordance with the ICC Rules of Arbitration, had waived its immunity from execution. In 2013, the Cour de cassation decided that a waiver of sovereign immunity from execution would only be recognised as effective in France if the specific assets or categories of assets for which the waiver was granted were expressly set out in the contract (Civ. 1, 28 March 2013, Case 11-13.323). In 2015, the Cour de cassation adopted a much less rigorous test, however, holding that a waiver of immunity from execution by a State should be express, without other conditions (Civ. 1, 13 May 2015, Case 13-17.751).

    Further considerations

  93. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
  94. One of the important points of the 2011 Reform is that the provisions regarding the “principle of confidentiality” of the arbitration, as applicable in domestic arbitration (article 1464 CPC), are not applicable in international arbitration. It will belong to courts to decide to what extent some degree of confidentiality may remain in international arbitration. For that reason, if the parties to an international arbitration seated in France wish to ensure the confidentiality of the proceedings, it would be wise to expressly agree upon the extent of such confidentiality, as well as the sanctions in case of breach. When an award is challenged or is sought to be enforced before French courts, the existence of the award and what the court discloses of it become public in the court’s decision. The court’s file and the award itself are not open to inspection by third parties however.

  95. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
  96. As explained above, the 2011 Reform does not extend the “principle of confidentiality” to international arbitration. A consequence may be that evidence produced, and pleadings filed, in an international arbitrationshould not be treated as confidential, unless otherwise agreed by the parties. Case law will inevitably address this type of questions in the coming years. Materials produced in the arbitration can in any event and without doubt be relied upon in set-aside proceedings by the parties to the arbitration..Unless the parties have provided otherwise, if a party breaches an obligation of confidentiality that may have been agreed in relation to the arbitration, the other party must show that it suffered a prejudice in order to recover damages.

  97. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
  98. Counsel and arbitrators are bound by the ethical codes and professional standards applicable in their home bars or jurisdictions. French law does not include any provisions specifically applicable to international arbitration. Of note, though, the Paris Bar adopted a resolution on 26 February 2008 which states that in the context of international arbitrations, seated in France or elsewhere, it is permissible for counsel to prepare a witness before his or her oral examination.

  99. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
  100. The principal procedural assumption is flexibility. As noted above, under article 1509 CCP, arbitrators have broad discretion to determine the procedure in the silence of the arbitration agreement. Even if the arbitration is seated in France, French law does not automatically govern the procedure. Following the 2011 Reform, when the arbitration is seated in France a challenge against the award before a French Court of Appeal will no longer suspend the enforcement of the award on French territory. However, a French court may stay or set conditions for enforcement of an award where enforcement could severely prejudice the rights of one of the parties (article 1526 CCP, for the first cases completely staying enforcement without imposing further conditions, see Paris Court of Appeal, CME, 3 April 2014, Case No. 13/22288 and 4 July 2014, Case No. 14/12102).

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GAR know-how provides reliable cross-jurisdictional insight to help cement the building blocks of international practice. In this section, select experienced practitioners answer commonly-asked questions for key jurisdictions so allowing readers to be better-placed to solve the challenges of their working days.

Questions

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
  7. Agreement to arbitrate

  8. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
  9. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
  10. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
  11. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
  12. 11.

    Groups of companies
    Is the 'group of companies doctrine' (or any other basis for piercing the corporate veil) recognised in your jurisdiction?


  13. 12.Separability
    Are arbitration clauses considered separable from the main contract?
  14. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
  15. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
  16. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
  17. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
  18. Commencing the arbitration

  19. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
  20. Choice of law

  21. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
  22. Appointing the tribunal

  23. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
  24. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
  25. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
  26. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
  27. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
  28. Challenges to arbitrators

  29. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
  30. Interim relief

  31. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?


  32. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
  33. Procedure

  34. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?


  35. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
  36. 29.Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?
  37. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
  38. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
  39. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
  40. 33.Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?
  41. Award

  42. 34.Majority decisions
    Can the tribunal decide by majority?
  43. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
  44. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
  45. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
  46. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
  47. Costs and interest

  48. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the 'loser pays' rule generally apply in your jurisdiction?


  49. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
  50. Challenging awards

  51. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
  52. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
  53. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
  54. Enforcement in your jurisdiction

  55. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
  56. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
  57. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
  58. Further considerations

  59. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
  60. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
  61. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
  62. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?