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Challenging and Enforcing Arbitration Awards 2019

Last verified on Friday 24th May 2019

France

Noah Rubins and Maxence Rivoire

    Applicable requirements as to form of arbitral awards

  1. 1.

    Must an award take any particular form (eg, in writing, signed, dated, place, the need for reasons, delivery)?

    1. Article 1481 of the Code of Civil Procedure provides that an award (whether domestic or international) must contain:  

      • the name, surname or corporate name of  each of  the parties, as well as their domicile or registered office; 
      • if  applicable, the name of  the lawyers or of  any other person who represented or assisted the parties; 
      • the arbitrators’ names;  
      • a date; and
      • the place where the award was rendered.  

      Under article 1482 of  the Code of Civil Procedure, the award must also contain reasons and give a succinct summary of  the parties’ submissions. It is implicit from these formal requirements that the award must be in writing. 

      In international arbitration, the parties may depart from the rules described above, though there would be very few reasons to do so in practice. By contrast, in domestic arbitration, the formal requirements are mandatory. 

      In principle, all the arbitrators must sign the award (articles 1480 and 1513 of the Code of  Civil Procedure). Should a minority of arbitrators refuse to sign the award, this must be mentioned, but the validity of the award is not affected. However, if the majority refuses to sign it, the award can be set aside in domestic arbitration. An international award would still be valid, as long as the president of  the tribunal signs it and mentions the others’ refusal. Though French law allows the president to render an international award alone, arbitrators should be mindful that many arbitration rules (eg, the UNCITRAL rules) require a majority decision. In such a case, there is a risk that an award with a single arbitrator signature will not be enforced in France, or will be set aside, as the tribunal would arguably breach the mandate conferred upon it (see by analogy, Paris Court of  Appeal, 1 July 1999, Revue de l’arbitrage 1999, No. 4, page 834). 

    Applicable procedural law for recourse against an award

  2. 2.

    Are there provisions governing modification, clarification or correction of an award?

    1. Article 1485 of  the Code of  Civil Procedure provides that the parties may ask the arbitral tribunal to interpret or supplement the award, or to correct material errors and omissions where the tribunal has failed to decide an element of  the claim. If it is impossible to reconvene the arbitral tribunal and the parties cannot agree to reconstitute it, the power to modify the award belongs to the court that would have had jurisdiction in the absence of  an arbitration agreement. 

      Such requests must be made within three months of  notification of  the award (article 1486 of  the Code of  Civil Procedure). 

      These rules apply in both domestic and international arbitration. 

    Applicable procedural law for recognition and enforcement of arbitral awards

  3. 3.

    May an award be appealed to or set aside by the courts? If so, on what grounds and what procedures? What are the differences between appeals and applications for set-aside?

    1. In international arbitration, an award is not subject to appeal, even if  the parties have otherwise agreed. 

      Appeals are possible in domestic arbitration, provided that the parties give their consent. 

  4. 4.

    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. 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 focus primarily on international arbitration.

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

      The provisions of  the Code of  Civil Procedure prevail over the New York Convention by virtue of  the ‘more favourable law’ provision contained in article VII(1) of  the Convention. This is because the French regime on recognition and enforcement is more liberal than that of  the New York Convention. For example, under French law, an arbitral award that has been set aside at the seat of  arbitration may be recognised or enforced. As a result, the New York Convention is less relevant in France than elsewhere. 

  5. 5.

    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 4, French courts rarely apply the New York Convention, since French law is more arbitration-friendly. The French provisions on recognition and enforcement apply, whether or not the award was rendered in a New York Convention Contracting State.

    Recognition proceedings

  6. 6.

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

    1. International awards rendered in France may only be enforced by the president of  the civil court of first instance that has territorial jurisdiction where the award was rendered (article 1516 of  the Code of Civil Procedure). If annulment proceedings are pending, the award may be enforced by the president of the court of appeal that has territorial jurisdiction, or by a judge in charge of the case management, once the case has been referred to him or her (Article 1521 of the Code of  Civil Procedure).  

      Where the award was rendered abroad, the president of the court of  first instance in Paris has exclusive jurisdiction to enforce it (article 1516 of the Code of Civil Procedure). 

      However, in two circumstances, award enforcement will not be handled by the president of  a civil court of  first instance. 

      First, in international arbitration, the decision of  a court of  appeal dismissing an application to set aside an award has the effect of automatically enforcing it, whether the seat of  arbitration is in France or a foreign country (article 1521 of  the Code of Civil Procedure). 

      Second, according to recent case law, where enforcement requires a review of whether the award complies with ‘mandatory rules of French public law relating to the occupation of  public land or rules governing public expenditure’, the administrative courts of first instance have exclusive jurisdiction over enforcement, not the civil courts (Trib confl, 24 April 2017, No. C4075; Trib confl, 11 April 2016, No. C4043; CE, Ass, 9 November 2016, No. 388806; and CA Paris, 4 July 2017, No. 15/16653). This exception is directly linked to the duality of  the French judicial system. Unlike in common law jurisdictions, cases with public law elements are handled by administrative courts, whereas private law cases are heard by civil and criminal courts. 

  7. 7.

    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. 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 within the meaning of  article 31 of  the Code of  Civil Procedure. According to the Court of  Cassation, the applicant has a legitimate interest if  the award is in its favour (Cass civ 1, 25 May 2016, No. 15-13.151).

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

  8. 8.

    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.

      However, enforcement proceedings become adversarial as soon as the award debtor lodges an appeal against the order, or applies to set aside the award (if the seat of arbitration was in France, see question 14). 

  9. 9.

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

    1. Pursuant to articles 1515 and 1516 paragraph 3 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 enforcement.

  10. 10.

    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. Under article 1515(2) of  the Code of  Civil Procedure, a full translation is required if  the required documentation is not drafted in French. The applicant may be invited to provide a certified translation by a sworn translator, although this is not a requirement in principle. In the authors’ experience, a certified translation is usually required in Paris. 

  11. 11.

    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.

  12. 12.

    Do courts recognise and enforce partial or interim awards?

    1. In principle, French courts recognise and enforce all decisions that can be characterised as ‘awards’ within the meaning of  French law. 

      Case law defines an award as a ‘final decision resolving in full or in part the dispute submitted to the arbitrators, whether on the merits, the jurisdiction of  the tribunal, or another procedural objection putting the proceedings to an end’ (Cass civ 1, 12 October 2011, No. 09-72439). 

      Accordingly, a partial award may be enforced in France. The enforcement of  interim decisions is more controversial, though the Paris Court of  Appeal found that a decision whereby a tribunal ordered interim measures for the duration of  the arbitral proceedings did constitute an award (7 October 2004, No. 2004/13909). 

      It must be noted that French courts do not consider themselves bound by the language used by arbitral tribunals to characterise their decisions; therefore, even an award labelled as a procedural order may be enforced in France if it can be regarded as a final decision on a disputed issue.

  13. 13.

    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. Pursuant to 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 context of the ex parte exequatur proceedings, the court of  first instance carries out a prima facie review of  compliance with international public policy. If an appeal is lodged against the enforcement order or if  annulment proceedings are brought against the award itself, the court of  appeal may scrutinise the award more intensely (see question 14).

      Notably, according to the Court of  Cassation, an arbitral award that has been set aside at the seat of  arbitration may be recognised or enforced in France (see question 18). This is the most significant distinction when compared to the grounds provided under article V of  the Convention. 

  14. 14.

    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 question 13).

      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). If the award was rendered in France, then the debtor may apply to set aside the award (article 1518 of the Code of Civil Procedure). The parties can expressly agree to waive their right to bring annulment proceedings; in such a case, however, the award debtor would retain its right to lodge an appeal against the enforcement order (article 1522 of  the Code of Civil Procedure). 

      Under article 1520 of  the Code of Civil Procedure, the enforcement order will 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.

      With respect to awards enforced by the administrative courts of  first instance (see question 6), the Council of State (the Supreme Court for public law matters) has jurisdiction to hear applications for annulment. Although its grounds for refusing to enforce awards appear to be similar to those set out in article 1520 of the Code of  Civil Procedure, the Council of State scrutinises awards more intensely than do the civil courts, in particular on public policy grounds. Indeed, the Council of State reviews the award’s compliance with public policy broadly, whereas the civil courts’ scope of review is limited to international public policy (see, for example, CE, Ass, 9 November 2016, No. 388806).

      In addition to applying for annulment, parties can bring a ‘revision action’ before the arbitral tribunal to review allegedly fraudulent awards (articles 1502 and 1506(5) of  the Code of Civil Procedure). In the event that the tribunal cannot be reconvened, the court of appeal that would have had jurisdiction to hear other challenges against the award will handle the application, provided that the award was rendered in France (article 1502 of the Civil Code of  Procedure). If the award was rendered abroad, then a new tribunal will have to be constituted. 

  15. 15.

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

    1. Pursuant to articles 1523 and 1525 of  the Code of  Civil Procedure, decisions refusing to recognise or to enforce an award may be appealed against within a month of  service. 

      If the arbitral award was rendered in France, a party may also apply for annulment, even during the appellate proceedings against the decision refusing to recognise the award, unless that party has waived its right to set aside, or the time limit has expired (article 1523(3) of the Code of  Civil Procedure). 

  16. 16.

    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. Pursuant to article 1526(1) of the Code of  Civil Procedure, challenges against an award do not have suspensive effect; therefore, courts will not typically adjourn enforcement proceedings pending the outcome of annulment proceedings at the seat.

      Yet, the court can suspend or adapt enforcement proceedings if a party can show that it is likely that its rights would be severely prejudiced by the enforcement of  the award (article 1526(2) of the Code of  Civil Procedure). Obtaining the suspension or adaptation of enforcement proceedings is generally difficult. Case law shows that such measures are granted only in exceptional circumstances (Paris Court of  Appeal, 18 October 2011, Revue de l’arbitrage 2012, No. 2, page 393). Nevertheless, in one decision, the Paris Court of  Appeal agreed to suspend immediate enforcement on the basis that restitution of  the amounts paid by the debtor would be ‘uncertain’ should the enforcement order be later repealed, insofar as the creditor wanted to transfer the assets from France to the Czech Republic (Paris Court of  Appeal, 23 April 2013, No. 13/02612). 

      It must be noted that article 1526 applies whether the seat of  arbitration is France or a foreign country. However, in the latter case, courts are very unlikely to adjourn enforcement proceedings, since an arbitral award may be enforced in France even if it has been set aside in a foreign country. 

  17. 17.

    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. Article 1526(2) of  the Code of  Civil Procedure allows the court to adapt the enforcement of  the award. Thus, if  the award debtor’s rights are likely to be ‘severely prejudiced’ by the enforcement of  the award (see question 16), the court may order the debtor to post security, possibly for the full amount awarded by the arbitral tribunal. Whether such an order is necessary depends on the circumstances of  the case.

  18. 18.

    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. Annulment of  the award at the seat is not listed among them.

      Therefore, French courts must recognise or enforce an award even though it has been set aside abroad (Cass civ 1, 9 October 1984, No. 83-11.355, Norsolor; civ 1, 23 March 1994, No. 92-15.137, Hilmarton; Cass civ 1, 29 June 2007, Putrabali, Bull civ 1, No. 05-18.053).

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

    Service

  19. 19.

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

    1. Service of extrajudicial and judicial documents by a bailiff is always permitted (article 651 of the Code of  Civil Procedure). Such documents may be served by other means only where the law expressly allows it. For example, among avocats, documents may be served directly by registered mail (article 671 of  the Code of Civil Procedure). 

      Special rules apply where the documents to be served upon a defendant residing in France originate from a foreign state (see article 688-1 et seq. of  the Code of Civil Procedure). 

  20. 20.

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

    1. To serve extrajudicial and judicial documents on a person who habitually resides outside France, bailiffs must send them to the public prosecutor’s office of  the court in which the claim is brought, the decision was rendered or in which the party serving the documents is domiciled (article 684 of  the Code of  Civil Procedure). The public prosecutor’s office must then collaborate with the Ministry of  Justice for the service of  the documents outside France. 

      These rules do not apply in cases governed by international treaties or European regulations allowing the bailiff to serve the documents on the person in question or on the authority having jurisdiction to notify in the state where the documents are meant to be served. 

      Service of  documents on a foreign state is addressed below (see question 33). 

    Identification of assets

  21. 21.

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

    1. Several public registers may be useful to an award creditor seeking to identify its debtor’s assets prior to enforcement. For information on ownership of  real estate property in France, one must send a form to the local land registry service. General information about corporations may be found in the Register of  Commerce (more information here: https://www.infogreffe.com/). Finally, bailiffs have access to a national register known as the FICOBA, which contains information about bank accounts held by individuals and corporations. 

  22. 22.

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

    1. There are no proceedings allowing for the disclosure of  information about an award debtor in France. However, as many decisions are publicly available, it may be possible to find useful information about a debtor by scrutinising these decisions, including in the context of  bankruptcy proceedings.

    Enforcement proceedings

  23. 23.

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

    1. It follows from article L. 511-2 of  the Code of  Civil Enforcement Proceedings that interim measures against assets are available to award creditors, without the need to apply to a court (see question 24).  

      In principle, assets owned by a sovereign state are immune from enforcement, subject to certain exceptions (see question 34).

  24. 24.

    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. As a general rule, article L. 511-1 of  the Code of  Civil Enforcement Proceedings provides that a party must obtain prior court authorisation before applying for interim measures.

      The party must show that: 

      • the existence of  the debt appears to be well founded; and 
      • certain circumstances are likely to threaten the recovery of  damages (eg, a risk of  insolvency, financial difficulties). 

      Authorisation is granted ex parte by a specialised court, responsible for enforcement in civil proceedings. The court must state the amount of  the debt to be guaranteed and the assets to which the interim measure shall apply (article R. 511-4 of the Code of  Civil Enforcement Proceedings). The authorisation will expire if  the measure in question is not performed within three months (article R. 511-6 of  the Code of  Civil Enforcement Proceedings).

      Award creditors do not need prior court authorisation. Indeed, under 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. Arbitral awards constitute judicial decisions within the meaning of this article (Cass civ 2, 12 October 2006, No. 04-19.062).

      In any case, where the measure is performed without an enforceable title, the creditor is required to initiate proceedings or to carry out the necessary formalities to obtain a properly enforceable title within a month of  performance of  the measure, failing which the measure will be voided (article R. 511-7 of the Code of  Civil Enforcement Proceedings). Hence, an award creditor would have to apply for enforcement soon after obtaining interim relief. 

      Finally, the debtor can apply to lift an interim measure at any time, provided that the two conditions set forth in article L. 511-1 are not met (article L. 512-1 of the Code of Civil Enforcement Proceedings). If the measures are indeed lifted and have caused the debtor damage, the creditor may be required to compensate the debtor for his or her loss (article L. 512-2 of  the Code of Civil Enforcement Proceedings). 

  25. 25.

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

    1. Under article L. 531-1 of the Code of Civil Enforcement Proceedings, creditors may be granted security over immovable property. Among the forms of  security, liens are automatically attached to court decisions and arbitral awards that have been granted exequatur in France (article 2412 of  the Civil Code). Under French law, liens allow a creditor to seize immovable property if  the debtor defaults.  

      Creditors, or their avocat, must register the lien with the local land registry service by providing the documents specified in article R. 532-1 of the Code of Civil Enforcement Proceedings and article 2428 of  the Civil Code. The documents must then be served on the debtor by a bailiff within eight days of  registration (article R. 532-5 of  the Code of Civil Enforcement Proceedings). 

      After registration, the debtor may still dispose of  its immovable property, but the property remains encumbered by the lien after being sold, which makes it more difficult to find a purchaser. 

      It must be noted that registration of the lien is only provisional. Conversion into a final or permanent registration is possible if  the creditor can provide an enforceable title to the real estate office, at least one month after the provisional registration (article R. 532-6 of  the Code of Civil Enforcement Proceedings). 

  26. 26.

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

    1. Under article L. 521-1 et seq. and R. 521-1 of  the Code of  Civil Enforcement Proceedings, a creditor may instruct a bailiff to seize its debtor’s movable assets temporarily, even if  they are held by a third party. In practice, the assets are to be frozen, that is to say the debtor is no longer able to dispose of  them. 

      If the debtor is present when the seizure is performed, the bailiff must give, among other things, oral notification to the debtor that the assets may no longer be disposed of, as well as a copy of  the related document (article R. 522-2 of  the Code of Civil Enforcement Proceedings). If the debtor is absent, the bailiff must serve the documents related to the interim measure on the debtor, who then has eight days to inform the bailiff of  the existence of  any prior attachment (article R. 522-3 of  the Code of Civil Enforcement Proceedings).

  27. 27.

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

    1. For this section, we have focused on corporate shares, goodwill, transferable securities, claims against third parties and intellectual property rights. 

      Under article L. 531-1 of the Code of Civil Enforcement Proceedings, creditors may be granted a pledge over corporate shares, transferable securities and goodwill. However, pledges are only valid after certain formalities have been completed. The creditor must: 

      • with respect to a pledge over goodwill, register it with the clerk of  the commercial court having territorial jurisdiction (article R. 532-2 of  the Code of Civil Enforcement Proceedings);  
      • with respect to a pledge over corporate shares, notify the company whose shares are concerned (article R. 532-3 of the Code of  Civil Enforcement Proceedings); and
      • with respect to a pledge over transferable securities, notify a person identified by the Code of Civil Enforcement Proceedings (see articles R. 532-4, R. 232-1, R. 232-2, R. 232-3, R. 232-4). 

      Creditors can also instruct a bailiff to temporarily seize the debtor’s corporate shares, transferable securities or even its claims against third parties (articles R. 523-1 and R. 24-1 of  the Code of Civil Enforcement Proceedings). The procedure is the same as for movable property (see question 27). In any of  these cases, a bailiff must serve various documents on the debtor within eight days of  the seizure (articles R. 523-3 and R. 524-2 of the Code of  Civil Enforcement Proceedings). 

      The Code of Civil Enforcement Proceedings does not contain any specific provisions about trademarks. But it is accepted that seizure of a trademark follows the same procedural rules as corporate shares or transferable securities, the only difference being that the seizure must be registered with the National Institute of Intellectual Property to be opposable to third parties (articles L. 714-7 and R. 714-4 of the Intellectual Property Code). 

      By contrast, the procedure to seize a patent is governed by specific rules. Seizure must be notified to the patent owner, the National Institute of Intellectual Property and to anyone holding rights under the patent (article L. 613-21 of  the Intellectual Property Code). Furthermore, the creditor must bring a claim before the competent court within a certain deadline, to confirm that the seizure was valid and for the patent to be sold. 

  28. 28.

    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. Pursuant to article L. 111-7 of the Code of  Civil Enforcement Proceedings, a creditor may decide which enforcement measure it wishes to carry out, as long as the measure is proportionate and necessary. Therefore, attachment of  the assets of a debtor is possible and does not require prior court authorisation, as long as the creditor has a valid enforceable title or where its claim is based on a judicial decision that is not yet enforceable, such as an arbitral award (see question 24). 

  29. 29.

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

    1. First, the creditor must put the debtor on formal notice to pay, by mandating a bailiff to serve an order to pay, which is equivalent to a writ of  attachment (articles L. 321-1 and R. 21-1 to R. 321-3 of  the Code of Civil Enforcement Proceedings). The attachment then needs to be registered in a special registry of  the land registry (article L. 321-5 of  the Code of Civil Enforcement Proceedings). Finally, the creditor must comply with various deadlines, before the property is sold by public auction or, upon judicial authorisation, private sale.

      The proceeds of  the sale are distributed among the creditors participating in the procedure. The remaining balance is returned to the debtor.

  30. 30.

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

    1. First, the creditor must put the debtor on formal notice to pay, by instructing a bailiff to serve an order to pay (articles R. 221-1 to R. 221-4 of the Code of  Civil Enforcement Proceedings). If the debtor fails to pay within eight days, the creditor can then instruct a bailiff to seize the debtor’s movable property, whether held by the debtor or a third party (article R. 221-10 of the Code of  Civil Enforcement Proceedings). If the debtor is not present during the attachment, the bailiff must serve the documents relating to the measure within eight days (article R. 221-26 of  the Code of  Civil Enforcement Proceedings). The debtor then has one month to sell its assets voluntarily to settle its debt (article R. 221-30 of the Code of Civil Enforcement Proceedings), failing which the property is sold by public auction. 

      The proceeds of the sale are distributed among the creditors participating in the procedure. The remaining balance is returned to the debtor.

  31. 31.

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

    1. Attachment against intangible property, including patents, is governed by similar procedural rules as are applicable to movable property (see article R. 231-1 et seq. of  the Code of  Civil Enforcement Proceedings). 

    Enforcement against foreign states

  32. 32.

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

    1. Articles L. 111-1-1, L. 111-1-2 and L. 111-1-3 of  the Code of Civil Enforcement Proceedings, which came into force on 9 December 2016 (Sapin II Act), deal with the issue of  state immunity from enforcement. Paragraph 3 of  article L. 111-1-2 specifically relates to enforcement of  arbitral awards against foreign states.

  33. 33.

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

    1. To serve extrajudicial and judicial documents on a foreign state (or indeed any other beneficiary of  jurisdictional immunity), bailiffs must send them to the public prosecutor’s office of  the court in which the claim is brought, the decision was rendered or in which the party serving the documents is domiciled (article 684 of  the Code of  Civil Procedure). The public prosecutor’s office must cooperate with the Ministry of  Justice, which will serve the documents through diplomatic channels.  

      The above rules do not apply in cases governed by specific international treaties or European regulations. However, according to the Paris Court of  Appeal, diplomatic channels are the only option if  the recipient of  the document is protected by jurisdictional immunity (Paris Court of  Appeal, 6 December 2011, No. 10/11533). Consequently, it appears that service of  a document on a foreign state cannot be made through the mechanism provided under the Hague Convention on the Service Abroad of  Judicial and Extrajudicial Documents in Civil or Commercial Matters. 

  34. 34.

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

    1. Article L. 111-1-2 of  the Code of Civil Enforcement Proceedings provides that assets belonging to a sovereign state are, in principle, immune from enforcement in France, unless:

      • the state has expressly consented to the enforcement measure in question;
      • the state has allocated or earmarked the asset in question for the satisfaction of the claim that is the object of  the proceedings; or
      • a judgment or an arbitral award has been rendered against the state and (1) the asset in question is specifically used or was intended to be used by the state other than for a non-commercial public service and (2) has a connection with the entity against which the proceedings were directed.

      The Code further sets out that, in applying article L. 111-1-2(3), the following assets are notably considered to be specifically used or intended to be used by a state for the purposes of a non-commercial public service:

      • assets, including bank accounts, that are used, or intended to be used, within the performance of  the state or its consular offices’ diplomatic mission, their special missions, their missions in international organisations, or within the functions of  the state’s delegations in the bodies of  international organisations or in international conferences;
      • assets that have a military character or are used, or intended to be used, within the scope of  military functions;
      • assets that are part of the cultural heritage of  the state or its archives and are not put up, or intended to be put up, for sale;
      • assets that are part of an exhibition of  objects having scientific, cultural or historical value and are not put up, or intended to be put up, for sale; and
      • tax debts or social security debts of  the state.

      Finally, it should be noted that the award creditor must apply for judicial authorisation prior to applying conservatory or enforcement measures against the assets of a foreign state (article L. 111-1-1 of  the Code of Civil Enforcement Proceedings). The application is brought ex parte, without prior notice to the state, and is heard by the division of  the Paris Court of First Instance specialising in enforcement matters (articles L. 111-1-1 and R. 111-1 of the Code of Civil Enforcement Proceedings).

  35. 35.

    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. Pursuant to article L. 111-1-2(1) of the Code of  Civil Enforcement Proceedings (see question 34), a state may waive its immunity from enforcement. The waiver must be express, but need not be specific. 

      A specific (and express) waiver is required with respect to assets used or intended to be used within the performance of  the state or its consular offices’ diplomatic missions, their special missions or their missions to international organisations (article L. 111-1-3 of  the Code of  Civil Enforcement Proceedings; see also, on the regime applicable prior to the entry into force of  this provision, Cass civ 1, 10 January 2018, No. 16-22.494, Commisimpex 2; Cass civ 1, 24 January 2018, No. 16-16.511). 

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

Questions

    Applicable requirements as to form of arbitral awards

  1. 1.

    Must an award take any particular form (eg, in writing, signed, dated, place, the need for reasons, delivery)?


  2. Applicable procedural law for recourse against an award

  3. 2.

    Are there provisions governing modification, clarification or correction of an award?


  4. Applicable procedural law for recognition and enforcement of arbitral awards

  5. 3.

    May an award be appealed to or set aside by the courts? If so, on what grounds and what procedures? What are the differences between appeals and applications for set-aside?


  6. 4.

    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?


  7. 5.

    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?


  8. Recognition proceedings

  9. 6.

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


  10. 7.

    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?


  11. 8.

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


  12. 9.

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


  13. 10.

    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? 


  14. 11.

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


  15. 12.

    Do courts recognise and enforce partial or interim awards?


  16. 13.

    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?


  17. 14.

    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?


  18. 15.

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


  19. 16.

    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?


  20. 17.

    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?


  21. 18.

    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?


  22. Service

  23. 19.

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


  24. 20.

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


  25. Identification of assets

  26. 21.

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


  27. 22.

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


  28. Enforcement proceedings

  29. 23.

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


  30. 24.

    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?


  31. 25.

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


  32. 26.

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


  33. 27.

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


  34. 28.

    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?


  35. 29.

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


  36. 30.

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


  37. 31.

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


  38. Enforcement against foreign states

  39. 32.

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


  40. 33.

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


  41. 34.

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


  42. 35.

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