Investment Treaty Arbitration: France

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)

Yes

Bosnia and Herzegovina (18 December 2005)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Brazil (not in force)

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 (14 October 2020)

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

Cuba (6 November 1999)

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 1975)

Yes

Yes

No

Yes

No

No

No

Yes

The Energy Charter (16 April 1998)¹

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Equatorial Guinea (23 September 1983)

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

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 (26 May 2009)

Yes

Yes

Yes

Yes

No

3 months

Yes

Yes

Korea (1 February 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

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

Macedonia (31 mars 2000)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Madagascar (17 April 2005)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Malaysia (1 August 1976)

No

Yes

Yes

Yes

No

No

No

Yes

Mauritius (1 April 1974)

Yes

Yes

Yes

Yes

No

No

No

No²

Mauritius (signed in 2010, 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 (3 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

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

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

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 (article 25 of the ICSID Convention).

In a recent case,³ 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 exclude dual nationals, had chosen not to do so here.⁴ However, the tribunal declined jurisdiction on the basis that Mr Pugachev did not hold French nationality at the time 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 through 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 in 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.

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–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, while the France–Colombia BIT (2014) excludes public debt operations and commercial transactions related to the import and export of goods and services.

Interestingly, the France–Colombia BIT (2014) also requires an asset to have, at a minimum, the following characteristics, sometimes described as two of the four defining features of an investment, namely the contribution of capital or other resources and the assumption of risk.

A couple of BITs specify that the investment must be 'owned or controlled' by the investor (see, France–Saudi Arabia (2002); France–Hong-Kong (1995)). In MAKAE v Saudi Arabia, the tribunal found that de facto control of the investor over the investment, without any legal ownership, was sufficient to fall within the definition of investment under the France–Saudi Arabia BIT.⁵

Indirect investments

French BITs do not exclude indirect investments. Although most BITs are silent on this issue, the France–Russia BIT (1989) explicitly states that indirect investments are protected. That is also the case of the France–Argentina BIT (1981), which the tribunal in Saur v Argentina construed as including protection for minority participation.⁶ See also, France–Mauritius BIT (2010), France–Angola BIT (2008) and France–Egypt BIT (1974), which also define the term 'investment' as specifically including indirect and minority participation.

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 Singapore (1975), France and Iran (2004) and France and Syria (1977).

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 of the applicable standard – to the minimum standard of treatment.⁷

Components of the FET standard

The 2006 Model BIT, which reflects 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.

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’.⁸

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)).

Other treaties refer to the interest rates set out in other instruments. For instance, the France–Uruguay BIT (1993) provides that interest should be calculated on the basis of the IMF Special Drawing Rights (SDRs) (see also, France–Algeria BIT (1993)). The France–Dominican Republic BIT (1999) provides for the application of the IMF’s International Financial Statistics. 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’.

Scope

All French BITs provide for national and most favoured nation treatment (MFN).

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 could not be used to import dispute resolution clauses.⁹

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’.

Most French BITs include cultural and linguistic diversity exceptions to their scope of application, which limit the scope of MFN protections. 

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.¹⁰

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.’

In the past, 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.

Rare occurrences

French BITs very seldomly include an umbrella clause. Only the following BITs are concerned (and the umbrella clauses they contain 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.

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 be included in the expropriation sections (often appearing in the last paragraph). Some BITs do however make it a self-standing clause, for example, the France–Mexico BIT (1998) or the France–Colombia BIT (2014).

Specific commitments clause or 'most favoured standard clause'

French BITs contain a clause that resembles an umbrella clause, or ‘observance of undertakings’ clause, but it 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 in article X(1) of the Swiss–Philippines BIT (‘Other commitments’). The tribunal held that article X(1) was ‘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 relationship 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 BI’ (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.

Denial of benefits

French investment treaties do not contain denial of benefits clauses, except for the Energy Charter Treaty (see, article 17 of the ECT), which is a mixed agreement signed and ratified by France.

Taxation

As in the Model BIT (2006), most recent French BITs exclude taxation matters from the scope of their national treatment and MFN treatment provisions. Some BITs go further and apply this exception to the FET standard as well (for example the France–Turkey BIT (2006)), or even to the whole treaty, thereby excluding all taxation matters from their scope (such as the France–Colombia BIT (2014) and the France–Senegal BIT (2007)).

However, this exception is not found in all French BITs (see, for example, the France–Kenya BIT (2007) and the France–Algeria BIT (1993)).

Measures to preserve and promote cultural and linguistic diversity

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 exception for cultural and linguistic diversity is found in the ‘Definitions’ or ‘Scope of Application’ section, and is accordingly meant to apply to the whole Treaty.

By way of illustration, 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.’

However, in some BITs (see, for example, the France–China BIT (2007)) this exception applies only to the non-discrimination standard. The France–Turkey BIT (2010) contains a similar provision but limits the carve-out to ‘cultural products’ and, more specifically, to ‘audiovisual products’.

Safegard measures to transfers in case of serious disequilibrium to the balance of payments

The French Model BIT provides for an exception specific to freedom of transfer, worded as follows: ‘When, in exceptional circumstances, capital movements from or to third countries cause or threaten to cause a serious disequilibrium to its balance of payments, each Contracting Party may temporarily apply safeguard measures to the transfers, provided that these measures shall be strictly necessary, would be imposed in an equitable, non-discriminatory and in good faith basis and shall not exceed in any case a six-month period.’

This provision can be found in the majority of French BITs (such as France–Nepal (1983); France–Mexico (1998); France–Mozambique (2002); France–Zambia (2002); France–China (2007); France–Guinea (2007); France–Seychelles (2007); France–Senegal (2007); France–Iraq (2010)). Some BITs add that such safeguard measures shall comply with the statutes of the IMF (for example, France–Bangladesh (1985); France–Turkey (2006); France–Uganda (2003)).

Essential security and public order

French BITs generally do not provide for 'essential security' or 'public order' exceptions. By exception, such a clause is included in wide terms in the France–Colombia BIT (2014). Other BITs providing for these exceptions further limit their scope. For example, the France–Kenya BIT (2007) only refers to times of war or armed conflict, while the France–Syria BIT (1977) limits this exception to measures aimed at preventing the disclosure of information contrary to the essential interests of its security. Other BITs provide for this exception only with regard to a specific substantive right, such as the FET (France–Nepal BIT (1983)) or entry or work permits (France–Jordan BIT (1978)).

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 any waiting period (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 the dispute resolution clauses found in most French BITs 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–Cuba BIT (1997), 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 auspices of the ICC. Some French BITs provide for ICC arbitration, 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 which exercised a local remedy can still go to arbitration, but that it must first terminate the local proceedings, and forego any further local remedies.

Similarly, the France–Guatemala BIT (1998) states that while an investor that brought a case before a local court or an arbitral tribunal can still change course and opt for the other forum, he or she 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 7,¹¹ and the France–Colombia BIT (2014) under article 15.)¹²

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

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.

The Ministry of Europe and Foreign Affairs (and in some cases, the Ministry of Economy and Finance (more specifically, the Directorate General of the Treasury)).

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.

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.

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).

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.

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

The French government has a positive attitude towards investment treaty arbitration. To date, France has signed more than 100 BITs, the overwhelming majority of which include an ISDS clause. Moreover, within the EU, France is very active in advocating for permanent investment arbitration courts.

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).

Since 2018, all setting aside proceedings against international awards are heard by the International Chamber of the Paris Court of Appeals, which has taken a pro-arbitration stance. In particular, the Paris Court of Appeals has many times over repeated the distinction between admissibility and jurisdiction, finding that objections related to the admissibility of a claim are not covered by article 1520 of the French Code of Civil Procedure.¹⁶

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 or money laundering have been raised.¹⁷

Regarding enforcement, on 9 December 2016, France enacted a 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.

Insurance Investment, France Public Investment Bank (BPI France)

Since 2016, COFACE transferred its public guarantee for exportation to BPI France.²⁰ This organisation has since then been 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 covered21

• The website of the Directorate General of the Treasury provides that the insurance does not apply to financial placements or to oil and gas investments.
• The investment must have been made in conformity with host state laws and received the necessary authorisation, as the case may be.
• Investments made in countries excluded from the Credit-Insurance Policy (PAC) are not eligible.

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 include a subrogation clause that would allow the insurer to act on behalf of the investor).²²

Quota insured

• Up to 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.

Multilateral Investment Guarantee Agency (MIGA)

France has ratified the Convention establishing the Multilateral Investment Guarantee Agency (MIGA) through Law No. 89-832 of 13 November 1989. The MIGA provides insurance for foreign investments made by nationals of member states in developing countries.²³

Beneficiaries

• Companies incorporated in France, having their principal place of business in France or majority-owned by French nationals.

Investments covered

• Covered investments include equity, shareholder loans, shareholder loan guarantees, non-shareholder loans and other forms of investment, such as technical assistance and management contracts, asset securitisations, capital market bond issues, leasing, services, and franchising and licensing agreements.
• The MIGA Exclusion List defines the types of projects that MIGA does not guarantee, including production or trade in weapons and munitions, alcoholic beverages, tobacco, gambling and casinos, radioactive materials, unbonded asbestos fibers, drift net fishing and any product or activity deemed illegal under host country laws or regulations or international conventions or subject to international bans. Additional exclusions apply to financial intermediaries.

Risks covered

• Currency inconvertibility and transfer restriction;
• government expropriation;
• war, terrorism, and civil disturbance;
• breaches of contract; and
• the non-honouring of financial obligations.

Eligibility

• The investment is made by an investor in a MIGA member country into a developing member country (in certain cases, the agency may also insure an investment made by a national of the host country, provided the funds originate from outside that country).
• The investment must be financially and economically viable and meet MIGA’s social and environ​mental performance standards.

Quota insured

• Up to $250 million per project (if necessary more can be arranged through syndication of insurance).

Duration of the guarantee

• Up to 15 years, with a possible five-year extension.

Premiums

• Based on a calculation of both country and project risk.

Eutelsat S.A. v United Mexican States (ICSID Case No. ARB(AF)/17/2), Award, 15 September 2021 (France–Mexico BIT (1998))

MAKAE Europe SARL v Kingdom of Saudi Arabia (ICSID Case No. ARB/17/42), Award, 30 August 2021 (France–Saudi Arabia BIT (2002))

UP and C.D Holding International v Hungary (ICSID Case No. ARB/13/35), Award, 9 October 2018 (France–Hungary BIT (1986)) (Decision on Hungary’s Request for Annulment of the Award rendered on 11 August 2021)

Sodexo Pass International SAS v Hungary (ICSID Case No. ARB/14/20), Award, 28 January 2019 (France–Hungary BIT 1986)) (Decision on Hungary’s Request for Annulment of the Award rendered on 7 May 2021)

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

Christian Doutremepuich and Antoine Doutremepuich v Republic of Mauritius (PCA Case No. 2018-37), Award on Jurisdiction, 23 August 2019 (France–Mauritius BIT (1973))

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))

Finetis SARL and Finetis Maroc SA v Kingdom of Morocco (ICSID Case No. ARB/21/44), registered 20 September 2021 (France–Morocco BIT (1996))

ADP International S.A. and Vinci Airports S.A.S. v Republic of Chile (ICSID Case No. ARB/21/40), registered 12 August 2021 (France–Chile BIT (1992))

Vicat S.A. v Arab Republic of Egypt (ICSID Case No. ARB/21/35), registered 22 June 2021 (France–Egypt BIT (1974))

Severgroup and K.N. Holding v French Republic (UNCITRAL), introduced 7 June 2021 (France–Russia BIT (1989))

Bachar Kiwan v State of Kuwait (ICSID Case No. ARB/20/53), registered 17 December 2020 (France–Kuwait BIT (1989))

Orange S.A. v Republic of Iraq (ICSID Case No. ARB/20/42), registered 14 October 2020 (France–Iraq BIT (2010))

JCDecaux SA v Czech Republic (ICSID Case No. ARB/20/33), registered 16 September 2020 (France–Czech Republic BIT (1990))

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

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

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

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 SA 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))