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Enforcement 2016

Last verified on Friday 18th November 2016

France

Elie Kleiman, Shaparak Saleh and Yann Dehaudt-Delville

    Applicable procedural law for recognition and enforcement of arbitral awards

  1. 1.

    What is the applicable procedural law for recognition and enforcement of an arbitral award in your jurisdiction? Is your jurisdiction party to treaties facilitating recognition and enforcement of arbitral awards?

    1. In France, two separate sets of rules apply to the recognition and enforcement of arbitral awards. Articles 1487 et seq of the Code of Civil Procedure apply to domestic arbitral awards, whereas articles 1514 et seq apply to international arbitral awards, comprising awards rendered in France in international matters and awards rendered abroad. The rules applicable to international arbitration are more arbitration-friendly. For the purposes of answering this questionnaire, we have focused on international arbitration only.

      France is party to several treaties facilitating the recognition and enforcement of arbitral awards, including the European Convention on International Commercial Arbitration of 21 April 1961, the ICSID Convention of 18 March 1965 and the New York Convention of 10 June 1958.

      The provisions of the Code of Civil Procedure prevail over the New York Convention, by virtue of the "more favourable law" provision contained under article VII(1) of the New York Convention. This is because French law goes further than the New York Convention in its willingness to recognise foreign arbitral awards. For instance, an arbitral award that has been set aside at the seat of arbitration may be recognised in France, and arbitral awards with pending challenges may be enforced in France. As a result, the New York Convention has much less relevance in France than it does in many states. 

  2. 2.

    Is the state a party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention? Was there any reservation made under article I(3) of the Convention?

    1. France is a party to the New York Convention. It signed the Convention on 25 November 1958 and ratified it on 26 June 1959. The Convention entered into force in France on 24 September 1959. France had initially made the two reservations permitted by the Convention: the commercial and reciprocity reservations. The commercial reservation was withdrawn on 17 November 1989. The reciprocity reservation remains in force today.

      However, as explained in question 1, it must be stressed that the French courts rarely apply the New York Convention, since French law’s own recognition regime is more arbitration-friendly than that of the Convention.

    Recognition proceedings

  3. 3.

    Which court has jurisdiction over an application for recognition and enforcement of arbitral awards?

    1. Pursuant to article 1516 of the Code of Civil Procedure, applications for the enforcement of an international award (exequatur) should be filed with the President of the Court of First Instance.

      When the international award has been rendered in France, the President of the Court of First Instance where the award was rendered is competent to hear the enforcement application.

      When the award is rendered abroad, the President of the Paris Court of First Instance has this competence.

      The President of the Paris Court of First Instance has significant experience in exequatur proceedings. Appeals against his decisions are brought before the first pole of the First Civil Chamber (Chambre 1) of the Court of Appeal of Paris, which is specialised in matters relating to international arbitration.

  4. 4.

    What are the requirements for the court to have jurisdiction over an application for recognition and enforcement of arbitral awards? Must the applicant identify assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings?

    1. The applicant is not required to identify assets within the jurisdiction of the court.

      French courts have jurisdiction over an application for the enforcement of an international arbitral award, whether domestic or foreign, so long as the applicant can establish a legitimate interest in the success of its application as per article 31 of the Code of Civil Procedure.

      The French Supreme Court recently clarified that such “legitimate interest” exists within the meaning of article 31 of the Code of Civil Procedure when the award is in favour of the party applying for the recognition of the award (Cass civ 1, 25 May 2016, No 15-13.151). 

  5. 5.

    Are the recognition proceedings in your jurisdiction adversarial or ex parte?

    1. Pursuant to article 1516 of the French Code of Civil Procedure, exequatur proceedings are ex parte. Proceedings are started with the filing of a request with the registry of the Court of First Instance.

      In the authors’ experience, in Paris, the judge usually renders an exequatur order on average between two weeks and one month after the filing of the application. Once this exequatur order is rendered and served on the award debtor, the latter may lodge an appeal against it (or seek to set aside the award itself if it was rendered in France). The proceedings become adversarial at this point in time (see question 11).

  6. 6.

    What documentation is required to obtain the recognition of an arbitral award?

    1. Pursuant to article 1515 of the Code of Civil Procedure, the party applying for exequatur must provide the original award and the arbitration agreement, or duly authenticated copies of these documents. In practice, in Paris, the judge requires the original award, an authenticated copy of the arbitration agreement and an extra copy of each of these documents.

      The application itself, filed by a French attorney, usually consists of a plain handwritten note on the first page of the award, setting out the application for recognition and enforceability.

  7. 7.

    If the required documentation is drafted in another language than the official language of your jurisdiction, is it necessary to submit a translation together with an application to obtain recognition of an arbitral award? If yes, in what form must the translation be? 

    1. If the required documentation (the original copy of the award and the copy of the arbitration agreement) is not drafted in French, a full translation is required under article 1515 of the Code of Civil Procedure. This article states that free translations are sufficient in principle, but that the judge may require a sworn translation. In the authors’ experience, in Paris, a sworn translation is generally required.

  8. 8.

    What are the other practical requirements relating to recognition and enforcement of arbitral awards?

    1. In order to apply for the recognition and enforcement of an arbitral award, applicants must be represented by an avocat, as per article 813 of the Code of Civil Procedure.

  9. 9.

    Do courts recognise and enforce partial or interim awards?

    1. All decisions from arbitral tribunals that qualify as ‘awards’ under French law may be recognised and enforced by French courts.

      Awards are defined in case law as decisions from arbitral tribunals determining in whole or in part the dispute referred to them (Cass civ 1, 12 October 2011, No 09-72439).

      Accordingly, a partial award or a decision that puts an end to arbitral proceedings on the basis of a procedural defence qualify as an award.

      French courts do not consider themselves bound by the language used by arbitral tribunals. Accordingly, an award labelled as a procedural order by the arbitral tribunal may be enforced in France if it can be regarded as a final decision on a disputed issue.

      Whether interim decisions rendered by arbitral tribunals can be enforced is more controversial. The Paris Court of Appeal ruled that the decision whereby the arbitral tribunal ordered interim measures constituted an award (Paris Court of Appeal, 7 October 2004, No 2004/13909).

  10. 10.

    What are the grounds on which an award may be refused recognition? Are the grounds applied by the courts different from the ones provided under article V of the Convention?

    1. Under article 1514 of the Code of Civil Procedure, recognition and enforcement of an arbitral award shall be granted by the Court of First Instance if:

      • its existence is demonstrated by the applicant, who has provided the required documentation in this respect (see (6) and (7) above); and
      • recognition or enforcement of the award would not be manifestly contrary to French international public policy.

      In the framework of the ex parte exequatur proceedings, the Court of First Instance will carry out a prima facie review of compliance with international public policy. A deeper review may be carried out by the Court of Appeal in an adversarial procedure if an appeal is lodged against the exequatur order or if annulment proceedings are brought against the award itself (if rendered in France) (see question 11).

  11. 11.

    What is the effect of a decision recognising the award in your jurisdiction? Is it immediately enforceable? What challenges are available against a decision recognising an arbitral award in your jurisdiction?

    1. Pursuant to article 1526 of the Code of Civil Procedure, in principle arbitral awards are enforceable immediately once exequatur is granted, even if a challenge against the exequatur order or against the award is pending (see (13) below).

      Once exequatur is granted, the award debtor may appeal the exequatur order if the award was rendered abroad (article 1525 of the Code of Civil Procedure), or apply for the award to be set aside if it was rendered in France (article 1518 of the Code of Civil Procedure).

      By a specific agreement, the parties can waive their right to bring annulment proceedings against an award rendered in France. The award debtor would, however, retain the right to bring appeal proceedings against the exequatur order (article 1522 of the Code of Civil Procedure). 

      Under article 1520 of the Code of Civil Procedure, the exequatur order shall only be repealed, or the award set aside, on one of the following grounds:

      • the arbitral tribunal wrongly upheld or declined jurisdiction;
      • the tribunal was irregularly constituted;
      • the arbitral tribunal ruled without complying with the mandate conferred upon it;
      • the due process requirement was violated; or
      • recognition or enforcement of the award would violate French international public policy.
  12. 12.

    What challenges are available against a decision refusing to recognise an arbitral award in your jurisdiction?

    1. Under article 1523 of the Code of Civil Procedure, decisions refusing to recognise or to enforce an award may be appealed within a month of service (three months if the party is domiciled abroad).  

      During the appellate proceedings when an award rendered in France is at stake, a party may apply for the award to be set aside, except where the time limit for such an action has expired or where the parties have expressly waived their right to bring an action to set aside the award pursuant to article 1522 of the Code of Civil Procedure.

  13. 13.

    Will the courts adjourn the recognition or enforcement proceedings pending the outcome of annulment proceedings at the seat of the arbitration? What trends, if any, are suggested by recent decisions? What are the factors considered by courts to adjourn recognition or enforcement?

    1. Under article 1526 of the Code of Civil Procedure, in principle arbitral awards are immediately enforceable once an exequatur order has been rendered. Challenges against awards and appeals against exequatur orders do not stay enforcement.

      In exceptional circumstances, enforcement may be suspended or modulated at the debtor’s request if it can show that its rights would likely be ‘severely prejudiced’ by the enforcement of the award.

      The balance-of-harm test applies: it must be shown that immediate enforcement of the award would cause material and irreparable harm to the award debtor, whereas a stay would cause no comparable harm to the award creditor.

      Recent decisions of the Paris Court of Appeal indicate that it would stay the enforcement of an award where it was established that this would jeopardise the financial viability of the award debtor. Where the financial viability of the award debtor is not threatened as a result of enforcement, but the ability or the willingness of the award creditor to reimburse the amounts received is doubtful (should the award later be set aside or held unenforceable), the court will not usually stay enforcement. Instead it will, at best, modulate it and order that it be paid into escrow.

  14. 14.

    If the courts adjourn the recognition or enforcement proceedings pending the annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security? What are the factors considered by courts to order security? Based on recent case law, what are the form and amount of the security to be posted by the party resisting enforcement?

    1. If the award debtor’s rights were likely to be ‘severely prejudiced’ by the enforcement of the award, as per (13) above, an order for security may be posted for the full amount awarded by the arbitral tribunal.

  15. 15.

    Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration? In case the award is set aside after the decision recognising the award has been issued, what challenges are available against this decision?

    1. The only grounds on which an award may be refused recognition and enforcement in France are the five stated in article 1520 of the Code of Civil Procedure, and the annulment of the award at the seat is not listed among them.

      Therefore, that an award rendered abroad has been set aside does not mean that the French courts will deny it recognition or enforcement. The Supreme Court has repeatedly confirmed this (Cass civ 1, 9 October 1984, Norsolor, Bull civ I, No 248; Cass civ 1, 23 March 1994, Hilmarton, Bull civ I, No 104; Cass civ 1, 29 June 2007, Putrabali, Bull civ I, No. 250).

      Accordingly, annulment of the award after the decision recognising the award has been issued is not a ground for challenging this decision.

    Service

  16. 16.

    What is the applicable procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction?

    1. Extrajudicial and judicial documents may always be served by a bailiff according to article 651 of the Code of Civil Procedure. By exception and where the law expressly allows it, judicial documents may be served by other means.

      The service of documents among avocats enjoys a simplified regime: documents may always be delivered directly against receipt pursuant to article 671 of the Code of Civil Procedure.

      When the documents are to be served from abroad to a defendant residing in France, and the situation is not governed by specific international conventions or European regulations (eg, EC Regulation No. 1393/2007 on the service in the member states of judicial and extrajudicial documents in civil or commercial matters (service of documents)), the documents are received by the Minister of Justice (article 688-2 of the Code of Civil Procedure). The minister may then entrust the task of serving the documents on the defendant with either the Public Prosecutor or the national chamber of bailiffs.

  17. 17.

    What is the applicable procedure for service of extrajudicial and judicial documents to a defendant out of your jurisdiction?

    1. Save cases governed by specific international conventions or European regulations (eg, EC Regulation No. 1393/2007 on the service in the member states of judicial and extrajudicial documents in civil or commercial matters (service of documents)), extrajudicial and judicial documents are normally to be addressed to the Public Prosecutor’s office of the jurisdiction before which the claim is brought, which has rendered the decision, or in whose remit the serving party is domiciled (article 684 of the Code of Civil Procedure). The Public Prosecutor’s office will then work with the Ministry of Justice for the service of the documents out of France.

      Where the documents are addressed to a state or any other beneficiary of jurisdictional immunity, the Ministry of Justice will use diplomatic channels.

    Identification of assets

  18. 18.

    Are there any databases or publicly available registers allowing the identification of an award debtor's assets within your jurisdiction?

    1. There are several public registers that may be useful to award creditors who are seeking to identify their debtor’s assets prior to enforcement. For instance, award creditors who intend to identify their debtor’s real-estate assets in France may turn to the Real Estate Registry, which holds ownership information for real-estate property in France. Local authorities can help to identify a debtor’s vehicles. The Register of Commerce identifies the owners of registered corporations and can be used to check whether a corporation faces bankruptcy proceedings. Bailiffs have access to a register containing information about bank accounts held by individuals and corporations, known as the fichier FICOBA.

  19. 19.

    Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?

    1. In France, in principle court proceedings are public. Many decisions are published, and publicly available. It may therefore be possible to find useful information about a debtor by scrutinising judicial decisions, including in the context of bankruptcy proceedings.

    Enforcement proceedings

  20. 20.

    Are interim measures against assets available in your jurisdiction? May award creditors apply such interim measures against assets owned by a sovereign state?

    1. Award creditors may perform interim measures against assets in France, pursuant to article L. 511-1 of the Code of Civil Enforcement Proceedings.

      In principle, interim measures against assets owned by a sovereign state are precluded by its sovereign immunity from enforcement  (see question 31).

  21. 21.

    What is the procedure to apply interim measures against assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before applying interim measures? If yes, are such proceedings ex parte?

    1. In principle, pursuant to article L.511-1 of the Code of Civil Enforcement Proceedings, a court must authorise interim measures. Application for such authorisation is filed with a specialised judge, the enforcement judge and granted in ex parte proceedings where:

      • the existence of the debt is plausible; and
      • circumstances likely to threaten the recovery of damages (eg, risk of insolvency, financial difficulties, previous uncooperative behaviour by the debtor, etc) are demonstrated.

      The authorisation will mention the amount of the debt to be guaranteed and the assets on which the interim measure is to apply. An authorisation will expire if the measure it permits is not performed within three months (article R. 511-6 of the Code of Civil Enforcement Proceedings).

      Pursuant to article L. 511-2 of the Code of Civil Enforcement Proceedings, prior court authorisation is not necessary when the creditor already holds an enforceable title or when its claim is based on a judicial decision that is not yet enforceable, including an arbitral award (Cass civ 2, 12 October 2006, No 04-19.062). An arbitral award creditor therefore does not need prior judicial authorisation to perform interim enforcement measures in France. 

      In any case, if the measure is performed without an enforceable title, the creditor is then required to initiate proceedings or to carry out the necessary formalities to obtain a proper enforcement title within a month of the implementation of the measure, failing which the measure is void according to article R. 511-7 of the Code of Civil Enforcement Proceedings.

      Pursuant to article L. 512-1 of the Code of Civil Enforcement Proceedings, the debtor can, at any time, apply to lift an interim measure if the conditions set forth in article L. 511-1 (see (20) above) are not met. Under article L. 512-2 of the Code of Civil Enforcement Proceedings, if the measures are lifted and have caused the debtor to suffer damages, the creditor may have to indemnify the debtor against these, including, potentially, legal costs (at the judge’s discretion).

  22. 22.

    What is the procedure for interim measures against immoveable property within your jurisdiction?

    1. Pursuant to articles L. 531-1, R. 531-1 and R. 532-1 of the Code of Civil Enforcement Proceedings, a creditor may take a conservatory mortgage against immoveable property.

      The procedure involves fulfilling the formalities set out by the Real Estate Registry (Services de la publicité foncière) for the registration of the mortgage. Such conservatory mortgage may be taken either by the creditor himself or by his or her attorneys.

      In order for it to be valid, documents relating to mortgage registration must be served on the debtor by a bailiff within eight days (article R. 532-5 of the Code of Civil Enforcement Proceedings).

      The debtor is still able to dispose of his property under the conservatory mortgage, but the property remains encumbered by the mortgage after being sold (which makes it more difficult to find a purchaser).

      The conversion into a final mortgage cannot take place within the first month from the registration of the conservatory mortgage (article R. 532-6 of the Code of Civil Enforcement Proceedings). 

  23. 23.

    What is the procedure for interim measures against moveable property within your jurisdiction?

    1. Under articles L. 521-1 et seq and R. 521-1 of Code of Civil Enforcement Proceedings, a creditor may perform a temporary seizure of his debtor’s moveable assets, even if they are held by a third party. The measure consists in mandating a bailiff to perform the seizure. The assets subject to the temporary seizure become "frozen" (the debtor will not be able to dispose of them).

      If the debtor is present while the seizure is performed, the bailiff will orally notify it of the conservatory mortgage, and give him a copy of the related documents (article R. 522-2 of the Code of Civil Enforcement Proceedings). If the debtor is absent, the bailiff serves the documents related to the measure on the debtor, who will have eight days to inform the bailiff of the existence of any prior attachment (article R. 522-3 of Code of Civil Enforcement Proceedings).

  24. 24.

    What is the procedure for interim measures against intangible property within your jurisdiction?

    1. This section only deals with the attachment of corporate shares, goodwill (fonds de commerce), transferable securities and of claims against third parties. It is not possible to perform interim measures against patents in France.

      With respect to corporate shares, transferable securities and goodwill, the debtor can perform a conservatory pledge (article L. 531-1 of the Code of Civil Enforcement Proceedings). Conservatory pledges are valid after the appropriate disclosure formalities have been carried out, whether these consist in a registration with a given body or a notification to the company whose corporate shares are concerned (articles R. 532-2, R. 532-3 and R. 532-4 of the Code of Civil Enforcement Proceedings).

      With respect to claims against third parties, temporary seizures may be performed on the debtor’s claims against third parties, or shares held in companies (articles R. 523-1 and R. 524-1 of Code of Civil Enforcement Proceedings) subject to the same regime as moveable property (see question 23).

      The documents related to the conservatory pledge and the temporary seizures have to be served on the debtor within eight days, by a bailiff.

  25. 25.

    What is the procedure to attach assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before attaching assets? If yes, are such proceedings ex parte?

    1. The attachment of the assets of a debtor does not require prior court authorisation and can be performed by a creditor if it possesses a valid enforceable title against the debtor.

      A creditor who holds an enforceable title may decide which enforcement measure he wishes to carry out pursuant to article L. 111-7 of the Code of Civil Enforcement Proceedings, as long as it is proportionate and necessary.

  26. 26.

    What is the procedure for enforcement measures against immoveable property within your jurisdiction?

    1. The attachment procedure for immoveable properties is complex.

      First, the creditor must formally put the debtor on notice to pay, by serving an order of payment via a bailiff, mentioning his enforceable title (articles R. 221-1 to R. 221-4 of Code of Civil Enforcement Proceedings).

      The procedure consists in mandating a bailiff to serve an attachment act on the debtor (article L. 321-1 et seq of the Code of Civil Enforcement Proceedings). The attachment needs then to be registered in the real-estate file (article L. 321-5 of the Code of Civil Enforcement Proceedings).

      After a procedure that requires the creditor to comply with several demanding deadlines, the property is then sold by public auction or, upon judicial authorisation, private sale.

      The proceeds of the sale are distributed among the creditors having a security right on the property and the creditors participating in the procedure. The remnant is returned to the debtor.

  27. 27.

    What is the procedure for enforcement measures against moveable property within your jurisdiction?

    1. First, the creditor must formally put the debtor on notice to pay, by serving an order of payment via a bailiff, referring to its enforceable title (articles R. 221-1 to R. 221-4 of Code of Civil Enforcement Proceedings).

      If the debtor fails to pay within eight days, the creditor can mandate a bailiff to seize the debtor’s moveable property, whether held by the debtor or a third party (article R. 221-10 of Code of Civil Enforcement Proceedings).

      If the debtor is not present during the attachment, the bailiff must serve the documents related to the measure within eight days (article R. 221-26 of the Code of Civil Enforcement Proceedings). The debtor will then have a month to sell its assets spontaneously to pay the debt (article R. 221-30 of the Code of Civil Enforcement Proceedings).

      If the debtor fails to sell its moveable assets within a month, the property is sold by public auction. The proceeds of the sale are distributed among the creditors participating in the procedure. The remnant is returned to the debtor.

      The debtor can appeal the enforcement judge’s decision rejecting its challenge within 15 days of its service (two months and 15 days if domiciled abroad), but such appeal does not stay the proceedings.

  28. 28.

    What is the procedure for enforcement measures against intangible property within your jurisdiction?

    1. Attachments against intangible property (except for patents or licences, which are governed by specific regimes) are subject to the same procedure as attachments against moveable property.

      It is noteworthy that when debts owed to the debtor are seized by its creditor, he or she will appropriate these debts and will not have to share the result of the seizure with other creditors.

    Enforcement against foreign states

  29. 29.

    Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?

    1. In France, rules governing the issue of sovereign immunity from enforcement have been coined by the case law of the Supreme Court and the Courts of Appeal.

      International conventions also play a significant role, as the basis for court decisions (for instance, in earlier case law, the Vienna Convention on Diplomatic Relations – see CA Paris, 10 August 2000, Compagnie Noga d'importation et d'exportation v Embassy of the Russian Federation, No XP100800X; CA Paris, 26 September 2001, République du Cameroun v Société Winslow Bank and Trust, No 2001/12633).

      The 2004 Convention on Jurisdictional Immunities of States and their Property has been relied on by the Supreme Court in three recent cases (dated 28 March 2013) concerning immunity from enforcement in relation to public assets of a state, even though this Convention is not yet in force. 

      A draft bill dated 30 March 2016 known as the Sapin II draft bill is currently under discussion before the French parliament. Articles 24, 24-bis and 24-ter of the Sapin II draft bill deal with enforcement proceedings against foreign states. Should the draft bill enter into force, enforcement proceedings against foreign states in France would undergo considerable changes.[1]



      [1] This article only describes the existing landscape as of 13 October 2016.  It will need to be updated in due course should the draft bill be adopted.

  30. 30.

    What is the applicable procedure for service of extrajudicial and judicial documents to a foreign state?

    1. Absent any specific international convention, to serve extrajudicial and judicial documents on a foreign state or other beneficiary of immunity from jurisdiction, it is necessary to address them to the office of the Public Prosecutor of the jurisdiction before which the claim is brought, which has rendered the decision, or in whose remit the serving party is domiciled. The documents will then be transmitted by the Ministry of Justice through diplomatic channels (see question 17).

  31. 31.

    Are assets belonging to a foreign state immune from enforcement in your jurisdiction? If yes, are there exceptions to such immunity?

    1. Assets belonging to sovereign states are, in principle, immune from enforcement in France, unless they are subject to the exception for commercial assets or a waiver of immunity (see below). 

      The issue of waiver of immunity from enforcement is addressed in (32) below.

      With respect to the exception, the Supreme Court considers that a state’s immunity from enforcement does not protect assets allocated to an economic or commercial activity governed by private law and which is the object of the proceedings (Cass civ 1, 14 March 1984, Eurodif v République Islamique d'Iran, Rev Arb 1985, 69; Cass civ 1, 20 March 1989, Eurodif v République Islamique d'Iran, Nos 86-18701 and 86-18797; see also Cass civ 1, 25 January 2005, République Démocratique du Congo v Cabinet CEFIC gestion, No. 03-18176).

      If the “Sapin II” draft bill enters into force as it currently reads, the exception to the state’s immunity from enforcement would be similar in kind to that which prevails today. Article 24 of the draft bill provides that enforcement is allowed “if the concerned asset is specifically used or aimed to be used for means other than non-commercial public services and is linked with the entity against which the procedure has been brought(article 24 of the draft bill to be codified at article L. 111-1-2 (3) of the Code of Civil Enforcement Proceedings).

      In this respect, although prior judicial authorisation to enforce or take conservatory measures is not currently required when the creditor holds an enforceable title, such authorisation will be necessary if “Sapin II” draft bill enters into force as it currently stands. Such authorisation will be granted ex parte upon filing of a request by the creditor (article 24 of the draft bill to be codified at article L. 111-1-1 of the Code of Civil Enforcement Proceedings).

      Finally, article 24 bis of the draft bill, as it currently reads, coins a new immunity from enforcement that is not susceptible of waiver and specifically prevents certain creditors (creditors who acquired government bounds after the state failed to pay its debt or had proposed to alter its terms within the past 48 months) to take conservatory or enforcement measures against certain states (states listed amongst the aid recipients by the OECD). 

  32. 32.

    Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? If yes, what are the requirements of such waiver?

    1. In France, although states are immune from enforcement in principle, they can nonetheless waive such immunity. Interestingly, French law does not appear to provide standard criteria which apply to any such waiver. A study of the case law shows that these criteria depend on the type of waiver and the assets at stake.

      In a decision of 6 July 2000 in the Creighton case (Cass civ 1, 6 July 2000, No 98-19068), where private assets of a state were at stake, the Supreme Court held that an arbitration agreement providing for ICC arbitration constituted not only a waiver of jurisdictional immunity, but also a waiver of immunity from foreign enforcement. The court’s rationale was grounded on the fact that under article 24 of the 1988 ICC Rules, applicable to the dispute (an equivalent can now be found in article 34.6 of the 2012 ICC Rules), the award debtor had undertaken to enforce the award without delay.

      In 2013, absent an arbitration agreement and where public assets of a state were at stake, the Supreme Court decided that a waiver of sovereign immunity from execution had to be specific and express in order to be valid (Cass civ 1, 28 March 2013, No 11-13.323).

      Finally and notably, although consistent case law had established that diplomatic immunity from enforcement was ‘autonomous’ and applied even when a state had waived its sovereign immunity from enforcement (see, eg, Cass civ 1, 28 September 2011, Bull civ I, No 153; Paris Court of Appeal, 10 August 2000, JDI 2001, 116), in a decision dated 13 May 2015, the Supreme Court decided that such waiver is effective, so long as it is express (Cass civ 1, 13 May 2015, No 13-17.751).

      If it is adopted as it currently reads, “Sapin II” draft bill will replace and simplify the applicable regime governing the waiver of immunity for enforcement described above.

      It first provides that immunity from enforcement may be overcome when the state (i) expressly accepted that enforcement proceedings be undertaken and/or when (ii) it dedicated or assigned certain assets to satisfy the claim that is the object of the proceedings (article 24 of the draft bill to be codified at article L. 111-1-2 (1) and (2) of the Code of Civil Enforcement Proceedings). 

      With respect to diplomatic assets, however, “Sapin II” draft bill requires that the waiver of the state’s immunity from enforcement be express and specific in order to be valid (article 24 of the draft bill to be codified at article L. 111-1-3 of the Code of Civil Enforcement Proceedings). 

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Questions

    Applicable procedural law for recognition and enforcement of arbitral awards

  1. 1.

    What is the applicable procedural law for recognition and enforcement of an arbitral award in your jurisdiction? Is your jurisdiction party to treaties facilitating recognition and enforcement of arbitral awards?


  2. 2.

    Is the state a party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention? Was there any reservation made under article I(3) of the Convention?


  3. Recognition proceedings

  4. 3.

    Which court has jurisdiction over an application for recognition and enforcement of arbitral awards?


  5. 4.

    What are the requirements for the court to have jurisdiction over an application for recognition and enforcement of arbitral awards? Must the applicant identify assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings?


  6. 5.

    Are the recognition proceedings in your jurisdiction adversarial or ex parte?


  7. 6.

    What documentation is required to obtain the recognition of an arbitral award?


  8. 7.

    If the required documentation is drafted in another language than the official language of your jurisdiction, is it necessary to submit a translation together with an application to obtain recognition of an arbitral award? If yes, in what form must the translation be? 


  9. 8.

    What are the other practical requirements relating to recognition and enforcement of arbitral awards?


  10. 9.

    Do courts recognise and enforce partial or interim awards?


  11. 10.

    What are the grounds on which an award may be refused recognition? Are the grounds applied by the courts different from the ones provided under article V of the Convention?


  12. 11.

    What is the effect of a decision recognising the award in your jurisdiction? Is it immediately enforceable? What challenges are available against a decision recognising an arbitral award in your jurisdiction?


  13. 12.

    What challenges are available against a decision refusing to recognise an arbitral award in your jurisdiction?


  14. 13.

    Will the courts adjourn the recognition or enforcement proceedings pending the outcome of annulment proceedings at the seat of the arbitration? What trends, if any, are suggested by recent decisions? What are the factors considered by courts to adjourn recognition or enforcement?


  15. 14.

    If the courts adjourn the recognition or enforcement proceedings pending the annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security? What are the factors considered by courts to order security? Based on recent case law, what are the form and amount of the security to be posted by the party resisting enforcement?


  16. 15.

    Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration? In case the award is set aside after the decision recognising the award has been issued, what challenges are available against this decision?


  17. Service

  18. 16.

    What is the applicable procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction?


  19. 17.

    What is the applicable procedure for service of extrajudicial and judicial documents to a defendant out of your jurisdiction?


  20. Identification of assets

  21. 18.

    Are there any databases or publicly available registers allowing the identification of an award debtor's assets within your jurisdiction?


  22. 19.

    Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?


  23. Enforcement proceedings

  24. 20.

    Are interim measures against assets available in your jurisdiction? May award creditors apply such interim measures against assets owned by a sovereign state?


  25. 21.

    What is the procedure to apply interim measures against assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before applying interim measures? If yes, are such proceedings ex parte?


  26. 22.

    What is the procedure for interim measures against immoveable property within your jurisdiction?


  27. 23.

    What is the procedure for interim measures against moveable property within your jurisdiction?


  28. 24.

    What is the procedure for interim measures against intangible property within your jurisdiction?


  29. 25.

    What is the procedure to attach assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before attaching assets? If yes, are such proceedings ex parte?


  30. 26.

    What is the procedure for enforcement measures against immoveable property within your jurisdiction?


  31. 27.

    What is the procedure for enforcement measures against moveable property within your jurisdiction?


  32. 28.

    What is the procedure for enforcement measures against intangible property within your jurisdiction?


  33. Enforcement against foreign states

  34. 29.

    Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?


  35. 30.

    What is the applicable procedure for service of extrajudicial and judicial documents to a foreign state?


  36. 31.

    Are assets belonging to a foreign state immune from enforcement in your jurisdiction? If yes, are there exceptions to such immunity?


  37. 32.

    Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? If yes, what are the requirements of such waiver?