Investment Treaty Arbitration

Last verified on Monday 28th September 2020

Investment Treaty Arbitration: France

Eric Teynier, Pierre Pic and Arianna Rafiq

Teynier Pic

Overview of investment treaty programme

1. What are the key features of the investment treaties to which this country is a party?

France

(a) BITs/MITs

BIT contracting party or MIT Substantive protections Procedural rights
Fair and equitable treatment (FET) Expropriation Protection and security Most-favoured-nation (MFN) Umbrella clause Cooling-off period Local courts Arbitration

Albania (14 June 1996)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Algeria (27 June 2000)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Angola (not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Argentina (3 March 1993)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Armenia (21 June 1997)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Azerbaijan (24 August 2000)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Bahrain (3 October 2005)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Bangladesh (9 October 1986)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Belarus (not in force)

Text available in Russian only

Bosnia and Herzegovina (7 December 2007)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Brazil (21 Mars 1995)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Bulgaria (1 May 1990)1

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Cambodia (24 July 2002)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Chile (24 July 1994)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

China (20 August 2010)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Colombia (not in force)

Yes

Yes

Yes

Yes

No

6 months cooling-off period before bringing the dispute to local courts. Additional 180 days to go to arbitration (ie, 12 months in total).

Yes

Yes

Congo (1 March 1975)

Yes

Yes

No

Yes

No

6 months

No

Yes

Costa Rica (18 June 1999)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Croatia (5 March 1998)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Cuba (6 November 1999)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Czech Republic (27 September 1991)2

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Djibouti (15 June 2010)

Yes

Yes

Yes

Yes

No

9 months

Yes

Yes

Dominican Republic (23 January 2003)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Egypt (1 October 1976)

Yes

Yes

No

Yes

No

No

No

Yes

The Energy Charter (16 April 1998)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Equatorial Guinea (23 September 1983)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Estonia (25 September 1995)3

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Ethiopia (7 August 2004)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Georgia (13 April 2000)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Ghana (not in force)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Guinea (16 mars 2017)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Guatemala (28 October 2001)

Yes

Yes

Yes

Yes

No

3 months

Yes

Yes

Haiti (25 March 1985)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Honduras (8 mars 2001)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Hong Kong (30 May 1997)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Hungary (30 September 1987)4

Yes

Yes

Yes

Yes

No

6 months

Yes

Limited (see article 9)

Iran (12 November 2004)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Iraq (24 August 2016)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Jamaica (15 September 1994)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Jordan (18 October 1979)

Yes

Yes

Yes

Yes

No

No

No

Yes

Kazakhstan (21 August 2000)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Kenya (3 January 2010)

Yes

Yes

Yes

Yes

No

3 months

Yes

Yes

Korea (1 March 1979)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Kuwait (16 May 1991)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Kyrgyzstan (10 August 1997)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Laos (8 March 1991)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Latvia (10 August 1994)5

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Lebanon (29 October 1999)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Liberia (22 January 1982)

Yes

Yes

No

Yes

No

6 months

No

Yes

Libya (29 January 2006)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Lithuania (27 March 1995)6

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Macedonia (31 mars 2000)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Madagascar (7 December 2007)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Malaysia (1 August 1976)

No

Yes

Yes

Yes

No

No

No

Yes

Malta (1 January 1978)7

Yes

Yes

No

Yes

No

No

No

No

Mauritius (9 March 1974)

Yes

Yes

Yes

Yes

No

No

No

No8

Mauritius (not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Moldova (3 November 1999)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Mongolia (22 December 1993)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Montenegro (3 March 1975)

Yes

Yes

No

Yes

No

3 months

No

Yes

Morocco (30 May 1999)

Yes

Yes

Yes

Yes

No

No

Yes

Yes

Mozambique (6 July 2006)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Namibia (26 February 2006)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Nepal (13 June 1985)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Nicaragua (31 mars 2000)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Nigeria (19 August 1991)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Oman (4 July 1996)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Pakistan (14 December 1984)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Panama (19 October 1985)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Paraguay (11 December 1980)

Yes

Yes

No

Yes

No

No

No

Yes

Peru (30 May 1996)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Philippines (13 June 1996)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Qatar (27 July 2000)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Romania (20 June 1996)9

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Russia (18 July 1991)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes (limited, see article 7)

Salvador (12 December 1992)

Yes

Yes

No

Yes

No

No

No

Yes

Saudi Arabia (18 March 2004)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Senegal (30 May 2010)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Serbia (3 March 1975)

Yes

Yes

No

Yes

No

No

No

No

Seychelles (28 December 2014)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Singapore (18 October 1976)

Yes

Yes

Yes

Yes

No

3 months

No

Yes

Slovak republic (27 September 1991)10

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Slovenia (5 August 2000)11

Yes

Yes

Yes

Yes

No

6 months

No

Yes

South Africa (22 June 1997)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Sri Lanka (19 April 1982)

Yes

Yes

Yes

Yes

No

12 months

No

Yes

Sudan (5 July 1980)

Yes

Yes

No

Yes

No

No

No

Yes

Syrian Arab Republic (1 March 1980)

Yes

Yes

Yes

Yes

No

No

No

Yes

Syrian Arab Republic (signed in 2009, not in force)

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

Tajikistan (24 August 2004)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Trinidad and Tobago (16 May 1996)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Tunisia (10 September 1999)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Turkey (3 August 2009)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Turkmenistan (2 May 1996)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Uganda (20 December 2004)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Ukraine (26 January 1996)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

United Arab Emirates (10 January 1995)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

United Mexican States (12 October 2000)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Uruguay (9 July 1997)

Yes

Yes

Yes

Yes

No

6 months

Yes

No

Uzbekistan (15 June 1996)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Venezuela (15 April 2004)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Vietnam (10 August 1994)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Yemen (19 July 1991)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Zambia (3 March 2014)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Zimbabwe (not in force)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Note: France does not conclude free trade agreements (FTAs) with investment chapters. Since the entry into force of the Lisbon Treaty, foreign direct investments fall under the exclusive competence of the European Union, that has negotiated and entered into several FTAs with investment chapters.

Answer contributed by Eric Teynier, Pierre Pic and Arianna Rafiq

Qualifying criteria - any unique or distinguishing features?

2. What are the distinguishing features of the definition of “investor” in this country’s investment treaties?

France

Issue Distinguishing features in relation to the definition of ‘investor’
Dual nationals

Dual nationals are not expressly excluded from the definition of investor but the French Model BIT (2006), and many BITs signed by France, only provide for ICSID arbitration, de facto excluding dual nationals from their protection.

In a recent case,12 Mr Sergei Pugachev, who holds both French and Russian nationalities, filed a US$14.5 billion claim against Russia on the basis of the France–Russia BIT (1989). In that case, the UNCITRAL tribunal held that the BIT did not expressly exclude dual nationals from its ambit and that there was no reason to read such an exclusion in the text of the BIT, especially as France, which sometimes entered into BITs that expressly excluded dual nationals, had chosen not to do so here.13 However, the tribunal declined jurisdiction on the basis that Mr Pugachev did not hold French nationality at the time when he made his investment.

As the tribunal stressed in Pugachev, France has signed BITs that exclude dual nationals from their ambit. The France–Ethiopia BIT (2003), for example, states that ‘nationals’ means ‘natural persons possessing the nationality of either contracting party’. Similarly, the France–Kazakhstan BIT (1998) provides that nationals mean nationals of France ‘or’ of the Republic of Kazakhstan. The France–Uruguay BIT (1993) is even clearer. It provides that the agreement is not applicable to persons who are nationals of both contracting parties, except insofar as such persons resided outside of the territory of the host state at the time when they made their investment.

Interestingly, the France–Colombia BIT (2014) provides that a claim submitted by a dual-national can only be heard by local courts – arbitration is not open to nationals of both France and Colombia.

Legal persons as ‘investors’

In most French BITs, legal persons are identified using criteria that are either formal (incorporation, seat) or substantial (control): to qualify as investor the legal person must either be incorporated and have its legal seat in the territory of a state party, or be controlled directly or indirectly by nationals of one state party or by another legal person whose seat is located in the territory of the state party.

Further specifications are sometimes given as to the meaning of ‘control’. In the France–Mexico BIT (1998), control is defined as being a majority shareholder, embodied with voting rights. In the France–Ethiopia BIT (2003), control is defined using a variety of criteria, such as the percentage of participation or voting rights.

Not all BITs set forth a control test; some rely only on formal criteria, such as seat and incorporation (see, for example, France–Iraq (2010) or France–Syria (1977)). Other BITs rely on a combination of formal factors, such as the French–Kenya BIT (2007), which refers to the company’s head office, its administrative headquarters and its principal place of business.

Interestingly, in the France–Turkey BIT (2010), legal persons may qualify as an investor either if their seat is located in a state party, or if their ‘effective economic activity’ takes place on the territory of the state party.

The France–Saudi Arabia BIT (2002) contains a non-exhaustive list of entities that may qualify as foreign investors such as cooperatives, joint-stock companies, branches, commercial associations, etc.

Answer contributed by Eric Teynier, Pierre Pic and Arianna Rafiq

3. What are the distinguishing features of the definition of "investment" in this country’s investment treaties?

France

Issue Distinguishing features in relation to the concept of ‘investment’
Asset-based definition

Most French BITs contain a broad, non-exhaustive list of assets that qualify as an ‘investment’.

However, there are exceptions. For example, the France–Bulgaria BIT (1989) sets out a closed list of covered assets, while the France–Mexico BIT (1998) excludes claims to money arising out of contracts for the sale of goods or services, as well as commercial loans or short-term loans.

Indirect investments

French BITs do not exclude indirect investments. Although most BITs are silent on this issue, the France–Czech Republic BIT (1990) explicitly states that indirect investments are protected.

In Saur v Argentina, the French–Argentina BIT (1981) was construed as including protection for minority participation.14 See also, France–Mauritius BIT (2010), France–Angola BIT (2008) and France–Egypt BIT (1974).

Legality requirement

Article 1 of the 2006 Model BIT provides that an investment must have been made in accordance with the laws of the host state. That is also the case in most BITs entered into by France, except for the France–Congo BIT (1972) and the France–Mauritius BIT (1973).

Prior authorization requirement

French BITs generally do not include prior authorisation requirements, except for the BITs entered into between France and Morocco (1975), France and Singapore (1975), France and Iran (2004) and France and Syria (1977).

Answer contributed by Eric Teynier, Pierre Pic and Arianna Rafiq

Substantive protections - any unique or distinguishing features?

4. What are the distinguishing features of the fair and equitable treatment standard in this country’s investment treaties?

France

Issue Distinguishing features of the fair and equitable(FET) treatment standard
Relationship with customary law

Most BITs refer to FET ‘in accordance with the principles of international law’. This should not be construed as a reference – and limitation – to the minimum standard of treatment.15

Components of the FET standard

The 2006 Model BIT, which reflects the French treaty practice, provides examples of measures that would be contrary to the obligation to accord fair and equitable treatment, such as restrictions on the sale or importation of products into the host state.

Work and administrative authorisations granted to key personnel

Most FET provisions contain a paragraph (that may also take the form of a self-standing clause) to the effect that each state party shall look favourably upon applications for work/residence/entry permits that are made by nationals of the other state party in relation to an investment.

Answer contributed by Eric Teynier, Pierre Pic and Arianna Rafiq

5. What are the distinguishing features of the protection against expropriation standard in this country’s investment treaties?

France

Issue Distinguishing features of the ‘expropriation’ standard
Criteria for lawful expropriation

In most French BITs, the lawfulness of the expropriation depends on the following criteria being fulfilled: public purpose, non-discrimination, conformity with specific commitments and payment of compensation.

The France–Turkey BIT (2006) adds that any expropriation must be carried out in accordance with local procedural rules. The France–Libya BIT (2004) also provides that it should be carried out ‘under the conditions provided for by law’ and the BIT that France signed with the Islamic Republic of Iran (2003) states that the expropriation must occur ‘in accordance with a legal procedure’.16

The wording at times varies. The France–Panama BIT (1982) states that the expropriation or nationalisation may not occur except in the public interest or in the ‘social interest’ (Original: ‘si ce n'est pour cause d'utilité publique ou d'intérêt social’.)

The France-Sri Lanka BIT (1980) adds that the deprivation of property cannot be discriminatory or contravene ‘any treaty signed by both contracting parties’.

Compensation

Most BITs provide that compensation must be ‘prompt’, ‘adequate’ and reflect the ‘real value’ of the investment, as set no later than at the moment of dispossession.

Under the France-Mexico BIT (1998) compensation must reflect ‘the fair market value’ and, in the absence of such a value, must reflect the ‘real value’ of the investment. The France–Lebanon BIT (1996) also refers to the ‘fair market value’.

Interestingly, the France–Kuwait BIT (1989) uses the ‘fair market value’ basis, but in the event that the fair market value cannot be determined, it provides for the application of ‘equitable principles’, referring to several criteria such as invested capital, depreciation, replacement value and all other useful elements that must be taken into account in assessing compensation.

The France–Liberia BIT (1979) provides that compensation should be determined in accordance with the criteria normally applied under international law (‘en tenant compte des critères et de la pratique habituelle du droit international’).

Interest rate

Most BITs provide that interest will run from the date of expropriation, at the relevant market rate.

However, some BITs provide that the interest rate should be agreed upon by both parties (France–Costa Rica BIT (1999), France–Panama BIT (1982), France–Pakistan BIT (1983), France–Vietnam BIT (1992)).

The France–Uruguay BIT (1993) states that interest should be calculated on the basis of the IMF Special Drawing Rights (SDRs) (see also, France–Algeria BIT (1993)).

The France–Czech Republic BIT (1990) and France–Slovakia BIT (1990) provide that the interest rate should be based on the IMF's International Financial Statistics, provided that the parties to the dispute did not decide otherwise. The France–Dominican Republic BIT (1999) also provides for the application of the IMF’s International Financial Statistics but does not refer to a potential agreement between the parties.

The France–Kuwait BIT (1989) states that the interest rate must be set at the relevant LIBOR rate.

Direct and indirect expropriation

Most if not all BITs refer to direct and indirect measures, although some BITs substitute ‘indirect’ for ‘measures having similar effects’.

Answer contributed by Eric Teynier, Pierre Pic and Arianna Rafiq

6. What are the distinguishing features of the national treatment/most-favoured-nation treatment standard in this country’s investment treaties?

France

Issue Distinguishing features of the ‘national treatment’ and/or ‘most favoured nation’ standard
Scope

All French BITs provide for National and Most Favoured Nation treatment (MFN).

Scope and carve-out

French BITs generally exclude taxation matters from the scope of the MFN clause. They also exclude privileges granted to nationals or companies of a third State ‘on account of its membership of, or association with, a free trade area, a customs union, a common market or any other form of regional economic organisation’.

Some BITs only provide MFN standards with regards to the obligation to accord fair and equitable treatment (namely, the BITs concluded with Korea (1977) and Egypt (1974)).

As for the much-debated issue of the application of the MFN to dispute resolution clauses, in the Doutremepuich case (France–Mauritius), the arbitral tribunal held that the MFN clause was worded in a way that meant it did not apply to dispute resolution clauses.17

Exception for cultural and linguistic diversity

Some BITs (see for example, the France–China BIT (2007)) contain a specific clause to the effect that the non-discrimination provision should not be construed in a way that would prevent a state party from adopting measures aiming at preserving its linguistic and cultural diversity. The France–Turkey BIT (2010) contains a similar provision but limits the carve-out to ‘cultural products’ and, more specifically, to ‘audiovisual products’.

However, in the Model BIT (2006) and in most BITS (such as France-Senegal (2007); France–Tajikistan (2002); France–Mexico (1998); France–Uganda (2003); France–Madagascar (2003), France–Djibouti (2007); France–Ethiopia (2003); France–Libya (2004); France–Iran (2003); France–Zambia (2002); France–Bosnia–Herzegovina (2003)), the provision on cultural and linguistic diversity is inserted in the ‘Definitions’ or ‘Scope of Application’ section, and is accordingly meant to apply to the whole Treaty.

To illustrate, article 1(5) of the Model BIT (‘Definitions’) provides that: ‘nothing in this agreement shall be construed to prevent one of the Contracting Parties from taking any measure to regulate investment by foreign investors and the conditions of activities of these investors, in the framework of measures designed to preserve and promote cultural and linguistic diversity.’

Answer contributed by Eric Teynier, Pierre Pic and Arianna Rafiq

7. What are the distinguishing features of the obligation to provide protection and security to qualifying investments in this country’s investment treaties?

France

Issue Distinguishing features of the ‘protection and security’ standard
Scope

While FPS has sometimes been included in the Fair and Equitable Treatment clause, it is now quite common for it to form part of the ‘expropriation’ clause, as exemplified in the 2006 Model BIT.18

The drafting is fairly uniform, as most BITs routinely provide that ‘The investments made by nationals or companies of one contracting Party shall enjoy full and complete (“pleine et entière”) protection and security on the territory and in the maritime area of the other contracting Party.’

Prior BITs sometimes limited the scope of FPS to the protection afforded to nationals of the Host State (see, for example, the France–Mauritius BIT).

The France–Iran BIT (2003) does not contain an FPS clause.

Answer contributed by Eric Teynier, Pierre Pic and Arianna Rafiq

8. What are the distinguishing features of the umbrella clauses contained within this country’s investment treaties?

France

Issue Distinguishing features of any ‘umbrella clause’
Rare occurrences

French BITs very seldomly include an umbrella clause. Only the following BITs are concerned (and even then, these are not unqualified, as seen below):

  • France–Hong Kong;
  • France–Mexico;
  • France–Russia; and
  • France–Yemen.
Scope

The France–Mexico BIT limits the scope of the umbrella clause to obligations assumed ‘in writing’. It further provides that ‘disputes arising from such obligations shall be settled only under the terms of the contracts underlying the obligations’ calling into question the very qualification of the umbrella clause. The reference to the dispute settlement mechanism provided for under the relevant contract indeed thwarts the ‘direct effect’ an umbrella clause may have.

Answer contributed by Eric Teynier, Pierre Pic and Arianna Rafiq

9. What are the other most important substantive rights provided to qualifying investors in this country?

France

Issue Other substantive protections
War clauses

Most BITs provide for a ‘war clause’ or ‘compensation for losses’ clause, according to which host states are obliged to compensate investors for certain losses arising owing to armed conflict or civil strife. Such clauses vary in scope. Early versions only provided that compensation should not be less than that paid to nationals (see, France–El Salvador BIT (1978), France–Sri Lanka BIT (1980)). Later versions added the obligation to accord Most Favoured Nation treatment with regards to compensation.

As with the FPS clause, it is common for ‘war clauses’ to form part of the expropriation section (often appearing in the last paragraph). But some BITs, for example, the France–Mexico BIT (1998) or the France–Czech Republic BIT (1990), make it a self-standing clause.

Specific commitments clause or ‘most favoured standard clause‘

French BITs contain a clause that resemble an umbrella clause, or ‘observance of undertakings’ clause, but is not a typical umbrella clause. Such clauses commonly provide that, if the state made some specific commitments to the investors that entitles them to a treatment more favourable than is provided for by the BIT, then such provisions shall – to the extent that they are more favourable – prevail over the BIT.

It is often stated as follows: ‘Investments having formed the subject of a special commitment of one Contracting Party, with respect to the investors of the other Contracting Party, shall be governed, without prejudice to the provisions of this Agreement, by the terms of the said commitment if the latter includes provisions more favourable than those of this Agreement. The provisions of [ISDS clause] of the present Agreement shall apply even in the case of a special commitment to the effect of waiving international arbitration or designating an arbitration body other than that mentioned in Article 8 of the present Agreement.’

There is some debate as to the scope of such clauses. In SGS Société Générale de Surveillance SA v Republic of the Philippines, the arbitral tribunal had to interpret a similarly worded clause, found under article X(1) of the Swiss–Philippines BIT (‘Other commitments’). The tribunal held that article X(1) was a ‘a kind of “without prejudice” clause, providing that legislative provisions or international law rules more favourable to an investor shall to that extent “prevail over this Agreement”. It deals with the relation between commitments under the BIT and distinct commitments under host State law or under other rules of international law. It does not appear to impose any additional obligation on the host State in the framework of the BIT’ (SGS Société Générale de Surveillance SA v Republic of the Philippines, ICSID Case No. ARB/02/6, 29 January 2004, Decision of the Tribunal on Objections to Jurisdiction, paragraph 114).

Transfer

Most BITs contain a provision to the effect that state parties shall guarantee the free transfer of all payments relating to an investment, without prejudice to the state parties’ international obligations deriving from their participation in regional economic integration.

Answer contributed by Eric Teynier, Pierre Pic and Arianna Rafiq

Procedural rights in this country’s investment treaties

10. Are there any relevant issues related to procedural rights in this country’s investment treaties?

France

Issue Procedural Rights
Cooling off

The foreign investor and the host state must first try to resolve the dispute amicably. Most BITs provide for a six-month cooling-off period. There are a few exceptions: The France–Kenya BIT (2007) provides for three months; the France–Djibouti BIT provides for nine months. There are also a few BITs that do not contain a waiting period at all (for example the France–Egypt BIT (1974), France–Malaysia BIT (1975), France–Syrian Arab Republic BIT (1977), France–Jordan BIT (1978), France–Paraguay BIT (1978), France–Salvador BIT (1978), France–Sudan BIT (1978) and France–Morocco BIT (1996)).

List of arbitral institutions

ICSID seems to be the preferred venue for arbitration. The French Model BIT only provides for ICSID arbitration and most of the dispute resolution clauses offer no other alternatives to potential investors.

There are certain exceptions: some BITs also provide for UNCITRAL arbitration, whether as the sole forum, such as the France–Bulgaria BIT (1989), or as one option among others as the France–China BIT (2007), and the France–Mexico BIT (1998).

Arbitrations may also be conducted under the aegis of the ICC. Whether exclusively, as in the France–Haiti BIT (1984), or as one option among others as in the France–Libya BIT (2004) and the France–Mexico BIT (1998).

The France–Syria BIT (1977) provides for alternative dispute resolution for cases where the ICSID mechanism is not available.

Fork in the road and waiver of local remedies

It is not very common for French BITs to provide fork-in-the-road provisions but there are a few examples: France–Angola (2008), France–Djibouti (2007) and France–Kenya BIT (2007), among others.

The France–Kenya BIT (2007) provides that an investor who exercised a local remedy can still go to arbitration, but that it must terminate the local proceedings first, and forego any further local remedies.

Similarly, the France–Guatemala BIT (1998) states that while an investor who brought a case before a local court/an arbitral tribunal can still change course and opt for the other forum, he must first terminate the case that is pending before the local courts or the arbitral tribunal.

The France–Mexico BIT (1998) details the fork-in-the-road provision further; it clarifies that not only is the investor precluded from going to arbitration if it brought a claim before a local court, the investor is also precluded from doing so if a claim has been brought before national courts by the company that is controlled by the investor and that is located within the territory of the host state.

Limited scope of the dispute resolution clause

Some of the dispute resolution clauses are limited, ratione materiae, to disputes arising out of the alleged breaches of specific standards of protection. (See, for example, the France–Russia BIT (1989) under article 7,19 and the France–Hungary BIT (1986) under article 9.)20

Similarly, the France–Turkey BIT (2010) excludes disputes relating to rights in rem affecting immovable assets from the protection of the BIT.

Answer contributed by Eric Teynier, Pierre Pic and Arianna Rafiq

11. What is the status of this country’s investment treaties?

France

In the wake of the Achmea decision (CJEU, 6 May 2018, C-284/16), EU member states agreed that investor-state arbitration clauses found in BITs concluded between members of the EU were contrary to EU law, and undertook to terminating such treaties [see, the declarations of 15 and 16 January 2019 on the legal consequences of the judgment of the Court of Justice in Achmea].

On 5 May 2020, 23 of the 27 EU member states, including France, signed the ‘Agreement for the termination of Bilateral Investment Treaties between the member states of the European Union’. Upon entry into force, the Agreement will have the effect of automatically terminating the 130 intra-EU BITs listed in Annex A.

The agreement is subject to ratification, approval or acceptance and, pursuant to article 16.1, it will enter into force 30 calendar days after the date on which the Secretary-General of the Council of the European Union receives the second instrument of ratification, approval or acceptance.

Answer contributed by Eric Teynier, Pierre Pic and Arianna Rafiq

Practicalities of commencing an investment treaty claim against this country

12. To which governmental entity should notice of a dispute against this country under an investment treaty be sent? Is there a particular person or office to whom a dispute notice against this country should be addressed?

France

Government entity to which claim notices are sent

The two ministries involved in the negotiation and implementation of bilateral investment treaties are the Ministry of Economy and Finance (more specifically, the Directorate General of the Treasury) and the Ministry of Europe and Foreign Affairs. Accordingly, a notice of dispute should be addressed to both ministries and to the Treasury.

Answer contributed by Eric Teynier, Pierre Pic and Arianna Rafiq

13. Which government department or departments manage investment treaty arbitrations on behalf of this country?

France

Government department that manages investment treaty arbitrations

The Ministry of Europe and Foreign Affairs (and likely also the Ministry of Economy and Finance (more specifically, the Directorate General of the Treasury).

Answer contributed by Eric Teynier, Pierre Pic and Arianna Rafiq

14. Are internal or external counsel used, or expected to be used, by the state in investment treaty arbitrations? If external counsel are used, does the state normally go through a formal public procurement process when hiring them?

France

Internal/External counsel

France does retain external counsel. When a Turkish investor initiated an ICSID arbitration against France, in 2013, the state put in place a public procurement process, at the end of which external counsel was retained.

Answer contributed by Eric Teynier, Pierre Pic and Arianna Rafiq

Practicalities of enforcing an investment treaty claim against this country

15. Has the country signed and ratified the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965)? Please identify any legislation implementing the Washington Convention.

France

Washington Convention implementing legislation

France signed the Washington Convention on 22 December 1965 and ratified it on 21 August 1967 (pursuant to Law No. 67-551 dated 8 July 1967; see Official Gazette 11 July 1967, page 6931). The Washington Convention entered into force 30 days later, on 20 September 1967.

Answer contributed by Eric Teynier, Pierre Pic and Arianna Rafiq

16. Has the country signed and ratified the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the New York Convention)? Please identify any legislation implementing the New York Convention.

France

New York Convention implementing legislation

France signed the New York Convention on 25 November 1958 and ratified it on 26 June 1959. Decree No. 59-1039 of 1 September 1959 provided for its publication in the Official Gazette. The New York Convention entered into force on 24 September 1959. France made no reservations (other than reciprocity).

Answer contributed by Eric Teynier, Pierre Pic and Arianna Rafiq

17. Does the country have legislation governing non-ICSID investment arbitrations seated within its territory?

France

Legislation governing non-ICSID arbitrations

On 13 January 2011, France enacted a new law on arbitration (Decree No. 2011-48 of 13 January 2011). This new legislation may be found under articles 1442 to 1527 of the French Code of Civil Procedure; these provisions apply to both domestic and international arbitration.

Answer contributed by Eric Teynier, Pierre Pic and Arianna Rafiq

18. Does the state have a history of voluntary compliance with adverse investment treaty awards; or have additional proceedings been necessary to enforce these against the state?

France

Compliance with adverse awards

To the best of our knowledge there are no investment treaty awards rendered against France.

Answer contributed by Eric Teynier, Pierre Pic and Arianna Rafiq

19. Describe the national government’s attitude towards investment treaty arbitration

France

Attitude of government towards investment treaty arbitration

There is nothing noteworthy to add in this respect.

Answer contributed by Eric Teynier, Pierre Pic and Arianna Rafiq

20. To what extent have local courts been supportive and respectful of investment treaty arbitration, including the enforcement of awards?

France

Attitude of local courts towards investment treaty arbitration

France is known for being an ‘arbitration-friendly’ jurisdiction. There are very limited grounds on which an international award may be set aside (see article 1520 of the French Code of Civil Procedure).

However, in recent years there has been a heightened scrutiny into awards’ conformity with international public policy, leading to more occurrences of a full review of the tribunal’s findings, in particular, in cases where allegations of corruption have been raised.

Regarding enforcement, on 9 December 2016, France enacted a new law on transparency, corruption and modernisation of the economy (known as the Sapin II Law) that introduced new rules on enforcement now making it more difficult to enforce an international award against a foreign state’s assets, in particular because it makes prior authorisation of the judge the starting point of the proceedings.

Answer contributed by Eric Teynier, Pierre Pic and Arianna Rafiq

National legislation protecting inward investments

21. Is there any national legislation that protects inward foreign investment enacted in this country? Describe the content.

France

There is no specific French investment law. French foreign investment policy is based on the principle that financial dealings between France and foreign countries are unrestricted (see article L. 151-1 of the Monetary and Financial Code (MFC)).

There are, however, limits on foreign investment, in the form of prior authorisation requirements. The prior authorisation regime applies to specific investment operations (operations that involve taking control of a French company, acquiring part of its business activities or acquiring more than 25 per cent of the voting rights of a French company)21 that relate to sensitive activities: activities that may be prejudicial to public policy, public security or to the interests of national defence, and activities involving the production or marketing of arms and ammunitions.

Following the coronavirus outbreak, the Ministry of Economy decided to widen the scope of the prior authorisation regime. For example, biotechnology is now listed as one area where foreign investments would require prior authorisation. The threshold for prior authorisation has been lowered to 10 per cent until the end of 2020 for obtaining participation in listed companies that are operating in one of these sensitive sectors.22

Answer contributed by Eric Teynier, Pierre Pic and Arianna Rafiq

National legislation protecting outgoing foreign investment

22. Does the country have an investment guarantee scheme or offer political risk insurance that protects local investors when investing abroad? If so, what are the qualifying criteria, substantive protections provided and the means by which an investor can invoke the protections?

France

Relevant guarantee scheme Qualifying criteria, substantive protections provided and practical considerations
Insurance Investment, France Public Investment Bank (BPI France)

Since 2016, COFACE transferred its public guarantee for exportation to BPI France.23 This organisation has been since then in charge of providing insurance for foreign investments.

Beneficiaries

  • French companies making long-term investment abroad; and
  • Banks providing loans to a foreign subsidiary.

Investments covered

  • The website of the Direction Générale du Trésor provides that the insurance does not apply to financial placements or to oil and gas investments.24
  • The investment must have been made in conformity with host state laws and received the necessary authorisation as the case may be.25
  • Investments made in countries excluded from the Credit-Insurance Policy (PAC) are not eligible.26
  • Risks covered

  • Voluntary act of the authorities of the host country (nationalisation, expropriation or measures having an equivalent effect);
  • political violence (war, terrorism activities, revolution or riot); and
  • non-transfer.
  • Eligibility

  • Bilateral Investment Protection Agreement between France and the host country (as one author noted, to avoid double compensation many BITs provide for a subrogation clause that would allow the insurer to act on behalf of the investor).27
  • Quota insured

    • 95 per cent of the loss.

    Duration of the guarantee

    • Three to 20 years.

    Premiums

    • Depends on the characteristics of the investment and the country in which it is made.

    Answer contributed by Eric Teynier, Pierre Pic and Arianna Rafiq

    Awards

    23. Please provide a list of any available arbitration awards or cases initiated involving this country’s investment treaties.

    France

    Awards

    Sergei Pugatchev v Russian Federation, Final Award, 18 June 2020 (France–Russian Federation BIT (1989))

    Louis Dreyfus Armateurs SAS v The Republic of India (PCA Case No. 2014-26), Award, 11 September 2018 (France–India BIT (1997))

    Compagnie International de Maintenance (CIM) v Ethiopia, Award, 2009 (France–Ethiopia BIT (2003))

    Suez, Sociedad General de Aguas de Barcelona SA and Interagua Servicios Integrales de Agua SA v Argentine Republic (ICSID Case No. ARB/03/17), Award, 4 December 2015 (France–Argentina BIT (1991))

    Suez, Sociedad General de Aguas de Barcelona SA and Vivendi Universal SA v Argentine Republic (ICSID Case No. ARB/03/19), Award, 9 April 2015 (France–Argentina BIT (1991))

    EDF International SA, SAUR International SA and León Participaciones Argentinas SA v Argentine Republic (ICSID Case No. ARB/03/23), Award, 11 June 2012 (France–Argentina BIT (1991))

    Total SA v Argentine Republic (ICSID Case No. ARB/04/1), Award, 27 November 2013 (France–Argentina BIT (1991))

    SAUR International v Argentine Republic (ICSID Case No. ARB/04/4), Award, 22 May 2014 (France–Argentina BIT (1991))

    Gemplus, SA, SLP, SA and Gemplus Industrial, SA de CV v United Mexican States (ICSID Case No. ARB(AF)/04/3), Award, 18 June 2010 (Mexico–France BIT (1998))

    Compañía de Aguas del Aconquija SA and Vivendi Universal SA v Argentine Republic (ICSID Case No. ARB/97/3), Award, 21 November 2000 (France–Argentina BIT (1991)) (Decision on the Argentine Republic’s Request for Annulment of the Award rendered on 20 August 2007)

    Renée Rose Levy de Levi v Republic of Peru (ICSID Case No. ARB/10/17), Award, 26 February 2014 (France–Peru BIT (1993))

    Renée Rose Levy and Gremcitel SA v Republic of Peru (ICSID Case No. ARB/11/17), Award, 9 January 2015 (France–Peru BIT (1993))

    Franck Charles Arif v Republic of Moldova (ICSID Case No. ARB/11/23), Award, 8 Avril 2013 (France–Moldova BIT (1997))

    Saint-Gobain Performance Plastics Europe v Bolivarian Republic of Venezuela (ICSID Case No. ARB/12/13), Award, 3 November 2017 (France–Venezuela BIT (2001))

    Veolia Propreté v Arab Republic of Egypt (ICSID Case No. ARB/12/15), Award, 25 May 2018 (France–Egypt BIT (1974))

    Edenred SA v Hungary (ICSID Case No. ARB/13/21), Award, 13 December 2016 (France–Hungary BIT (1986))

    Pending Proceedings

    UP and C.D Holding International v Hungary (ICSID Case No. ARB/13/35), registered 23 December 2013 (France–Hungary BIT (1986))

    Sodexo Pass International SAS v Hungary (ICSID Case No. ARB/14/20), registered 15 August 2014 (France–Hungary BIT 1986))

    Veolia Environment SA and others v Republic of Lithuania (ICSID Case No. ARB/16/3), registered 10 February 2016 (France–Lithuania BIT (1992))

    Eutelsat SA v United Mexican States (ICSID Case No. ARB(AF)/17/2), registered 16 August 2017 (Mexico–France BIT (1998)).

    MAKAE Europe SARL v Kingdom of Saudi Arabia (ICSID Case No. ARB/17/42), registered 8 November 2017 (France–Saudi Arabia BIT (2002)).

    Société Générale SA v Republic of Croatia (ICSID Case No. ARB/19/33), registered 20 December 2019 (Croatia–France BIT (1996))

    Carlos Sastre and others v United Mexican States (ICSID Case No. UNCT/20/2), registered 3 March 2020 (France–Mexico BIT (1998))

    Settled or discontinued proceedings

    Société Générale in respect of DR Energy Holdings Limited and Empresa Distribuidora de Electricidad del Este, SA v The Dominican Republic (LCIA Case No. UN 7927), Award on preliminary objections to jurisdiction, 19 September 2008, settled by the parties (France–Dominican Republic BIT (1999))

    Erbil Serter v French Republic (ICSID Case No. ARB/13/22), settled by the parties (France–Turkey BIT (2006))

    Electricidad Argentina SA and EDF International S.A v Argentine Republic (ICSID Case No. ARB/03/22), procedure discontinued on 28 March 2017 (France–Argentina BIT (1991))

    Compagnie Minière Internationale Or SA v Republic of Peru (ICSID Case No. ARB/98/6), settled by the parties and procedure discontinued on 23 February 2001 (France–Peru BIT (1993))

    Aguas Cordobesas SA, Suez, and Sociedad General de Aguas de Barcelona SA v Argentine Republic (ICSID Case No. ARB/03/18), settled by the parties and procedure discontinued on 24 January 2007 (France–Argentina BIT (1991))

    France Telecom SA v Argentine Republic (ICSID Case No. ARB/04/18), settled by the parties and procedure discontinued on 29 March 2006 (France-Argentina BIT (1991))

    Bidzina Ivanishvili v Georgia (ICSID Case No. ARB/12/27), settled by the parties and procedure discontinued on 10 December 2012 (France–Georgia BIT (1997))

    VICAT v Republic of Senegal (ICSID Case No. ARB/14/19), settled by the parties and procedure discontinued on 6 June 2016 (France–Senegal BIT (2007))

    Orange SA v Hashemite Kingdom of Jordan (ICSID Case No. ARB/15/10), settled by the parties and procedure discontinued on 17 November 2016 (France–Jordan BIT (1978))

    SAUR and STEREAU v People’s Democratic Republic of Algeria (ICSID Case No. ARB/18/44), settled by the parties and procedure discontinued on 7 February 2020 (France–Algeria BIT (1993))

    Answer contributed by Eric Teynier, Pierre Pic and Arianna Rafiq

    Reading List

    24. Please provide a list of any articles or books that discuss this country’s investment treaties.

    France

    Mathias Audit, Synthèse – Droit des investissements internationaux, Lexis 360, updated on 15 June 2020 by Julien Cazala

    Mathias Audit and Julien Cazala, JurisClasseur Droit international, Fasc. 572-55: Droit des investissements – Régime du droit interne, 19 July 2019

    Yas Banifatemi and Andre Von Walter, ‘France’ in Commentaries on Selected Model Investment Treaties, Chester Brown (ed.), Oxford University Press, 2013

    Julien Cazala, ‘ Investissement – Fin de partie pour les traités bilatéraux d’investissement

    intra-européens? À propos de l’accord du 5 mai 2020’, Journal du Droit international (Clunet) No. 3, July 2020

    Yves Derains and Laurence Kiffer, National Report for France (2013 through 2020), ICCA International Handbook on Commercial Arbitration, Kluwer Law International 2020, Supplement No. 110, April 2020

    Emmanuel Gaillard, ‘L’arbitrage sur le fondement des traités de protection des investissements – Les états dans le contentieux économique international, I. Le contentieux arbitral’, Revue de l’Arbitrage, 2003, pp. 853–878

    Frédéric Gilles Sourgens, Bilateral Investment Treaty Overview – France, Investment Claim, Oxford University Press, 2015

    Arnaud de Nanteuil, Droit international de l’investissement, A. Pedone, 2020

    Notes

    1 This BIT will be terminated once the “Agreement for the termination of Bilateral Investment Treaties between the Member States of the European Union” enters into force (pursuant to article 2 of the Agreement).

    2 Idem.

    3 Idem.

    4 Idem.

    5 Idem.

    6 Idem.

    7 Idem.

    8 There is no investment-state dispute settlement mechanism in the BIT. One provision, article 9, imposes an obligation on the state party to include such a mechanism in their investment contracts, but nothing more. In a recent case, brought on the basis of this BIT, the arbitral tribunal stated in relation to the provision: ‘Article 9 thus contains an obligation for the Contracting States to include an arbitration agreement in any possible investment contract they conclude with nationals of the other Contracting State, but no direct consent to arbitrate any future disputes between one Contracting State and a national of the other Contracting State. In 1973, such direct consent to arbitrate was not well-known yet and would only become a commonly used provision in later investment treaties. Accordingly, Article 9 of the France-Mauritius BIT cannot, in and of itself, be the basis for the Tribunal’s jurisdiction’ (Christian Doutremepuich and Antoine Doutremepuich v. Republic of Mauritius, PCA Case No. 2018-37, Award on Jurisdiction, 23 August 2019, paragraph 191).

    9 Idem.

    10 Idem.

    11 Idem.

    12 Sergei Viktorovich Pugachev. The Russian Federation, UNCITRAL, Award, 18 June 2020.

    13 Sebastian Perry, ‘Oligarch fails in US$14 billion claim against Russia’, Global Arbitration Review, 22 June 2020, https://globalarbitrationreview.com/article/1228113/oligarch-fails-in-ususd14-billion-claim-against-russia

    14 SAUR International v Argentine Republic, ICSID Case No. ARB/04/4, 6 June 2012, Decision on Jurisdiction and Liability, paragraph 435.

    15 See, for example, Suez, Sociedad General de Aguas de Barcelona SA, and Vivendi Universal SA v The Argentine Republic, ICSID Case No. ARB/03/19, paragraph 184: ‘With respect to the Argentina-France BIT, it is to be noted that the text of the treaty refers simply to “the principles of international law”, not to “the minimum standard under customary international law”. The formulation “minimum standard under customary international law” or simply “minimum international standard” is so well known and so well established in international law that one can assume that if France and Argentina had intended to limit the content of fair and equitable treatment to the minimum international standard they would have used that formulation specifically. In fact, they did not.’ (See also, the dissenting opinion by Pedro Nikken).

    16 See also, the France–United Mexican States BIT (1998).

    17 Christian Doutremepuich and Antoine Doutremepuich v Republic of Mauritius, PCA Case No. 2018-37, Award on Jurisdiction, 23 August 2019, paragraph 210.

    18 There are, however, exceptions, see for example, the French- Angola (2008) BIT in which the FPS is included in the FET section.

    19 France–Russia BIT (1989), article 7: ‘Any dispute between one of the Contracting Parties and an investor of the other Contracting Party on the effects of a measure taken by the first Contracting Party and relating to the management, retention, enjoyment or liquidation of an investment made by an investor, in particular, but not exclusively, to the effects of a measure relating to the transport and sale of goods, or to the dispossession of transfers referred to in Article 5 of this Convention, is as much as possible, settled between the two parties. If such a dispute could not be settled within a reasonable period of six months from the time it was raised by one of the parties to the dispute, it may be submitted in writing to arbitration […]’ (non-official translation).

    20 France–Hungary BIT (1986), article 9: ‘1. Any investment dispute between any of the Contracting Party and an investor of the other Contracting Party is as far as possible, settled by the two parties concerned or if it fails, through domestic remedies. 2. However, disputes relating to measures of expropriation referred to in Article 5(2), and in particular those relating to the existence of compensation, the amount thereof, the conditions of payment and the interest to be paid in the event of late payment, shall be governed by the following conditions: If such a dispute has not been settled amicably within a period of six months from the time it is raised by one of the parties to the dispute, it shall be submitted at the request of either party to the arbitration […]’ (non-official translation).

    21 This last requirement does not apply to EU nationals.

    22 See, ‘Foreign Direct Investment Screening in France’, Direction Générale du Trésor; see also, Covid-19, Update of the foreign direct investment screening procedure in France, Direction Générale du Trésor, 30 April 2020.

    23 Press release ‘COFACE and BpiFrance finalise the conditions for the transfer of state export guarantees’, 18 April 2016.

    24 See, ‘ La garantie investissement ‘, Direction Générale du Trésor, 22 January 2020, https://www.tresor.economie.gouv.fr/services-aux-entreprises/la-garantie-investissement.

    25 Ibid.

    26 Ibid.

    27 See, Arnaud de Nanteuil, Droit international de l’investissement, p.382–383, paragraph 825.

    Answer contributed by Eric Teynier, Pierre Pic and Arianna Rafiq

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