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Commercial Arbitration

Last verified on Monday 11th May 2020

France

Romain Dupeyré and Negah Ghorbany Zadeh

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
    1. Yes. The New York Convention entered into force in France on 24 September 1959. There is no noteworthy declaration or reservation with respect thereto. The New York Convention specifically provides that it shall not apply when the legislation of the state where the recognition or enforcement of the award is sought is more favourable to recognition and enforcement than the New York Convention, which is the case in French law (see article 1520 of the French Code of Civil Procedure (CCP)).

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

  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
    1. Yes. French arbitration law provisions are embodied in Book IV of the CCP. France first adopted provisions regarding arbitration in 1980 and 1981, which were reformed by Decree No. 2011-48 of 13 January 2011. Two different regimes are in place for domestic (CCP, articles 1442–1503) and international arbitration (defined as international when "international trade interests are at stake") (CCP, articles 1504–1527). 

      With respect to international arbitration, the CCP contains rules governing the arbitration agreement (articles 1507–1508), the arbitral proceedings and the award (articles 1509–1513), the recognition and enforcement of awards (articles 1514–1517) and post-award remedies (articles 1518–1527). Case law plays an important role in their interpretation.

      French law on international arbitration is applicable to all arbitrations seated in France, unless otherwise agreed by the parties, subject to French mandatory rules of procedure.

  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
    1. The International Court of Arbitration of the International Chamber of Commerce is based in Paris. There are many other arbitration institutions in France, the most popular being the Centre of Mediation and Arbitration of Paris (CMAP), the French Arbitration Association (AFA), the Arbitration Chamber of Paris, Delos Dispute Resolution and the French Insurance and Reinsurance Arbitration Centre (CEFAREA-Arias France). These arbitral institutions may act as appointing authorities if the parties have so agreed.

  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
    1. Yes, foreign arbitral providers can operate in France and administer arbitrations seated in France.

  6. 6.

    Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with, and supportive of, the law and practice of international arbitration?

    1. The specialist arbitration court in France is the Paris Court of Appeal. Chamber 1 Division 1 of the Court has historically been dedicated to international private law and arbitration. This specialty was consecrated on 7 February 2018 through the creation of the International Chamber of the Paris Court of Appeal (CICAP). The CICAP is presided by a judge specialised in arbitration law. It has jurisdiction to hear challenges against international arbitral awards made in France, recourses against the decisions of the Tribunal judiciaire (High Court, former Tribunal de grande instance) on the recognition and enforcement of foreign arbitral awards in France, as well as disputes where international trade interests are at stake. Parties are allowed to plead in English, if they so wish, before the CICAP.

      In addition, in 2018, an economic and commercial division was created at the Paris High Court. It is composed of 22 judges and includes a sub-division dedicated to proceedings in support of domestic and international arbitration.

      French courts are generally familiar with, and supportive of the law and practice of international arbitration. They have significantly contributed, through an abundant jurisprudence favourable to arbitration at all stages of the proceedings, to the recognition of France as one of the most arbitration-friendly jurisdictions in the world.

    Agreement to arbitrate

  7. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
    1. Under French law, unlike domestic arbitration agreements that must be in writing to be valid (CCP, articles 1442–1445), international arbitration agreements are not subject to any formal requirement (CCP, article 1507). Their efficiency is assessed with regard to the common intent of the parties (Cour de Cassation, Civ 1, 20 December 1993, Dalico, Bull. 1993, I, No. 372), which must be demonstrated for the arbitration agreement to be valid and enforceable. It is therefore advisable, although not mandatory, to agree to arbitration in writing. 

      Arbitration agreements may be incorporated into a contract by reference in another document such as general conditions or standard contracts. They are valid, unless indicated otherwise in the main contract, if the party to whom the clause is opposed has been aware of the content of that document at the time of the conclusion of the main contract and has, even by its silence, consented to the incorporation of the document into the contract (Cour de Cassation, Civ 1, 11 May 2012, No. 10-25.620).

      Arbitration agreements can cover future disputes on one side, and may also be entered into by the parties once a dispute has arisen on the other side (CCP, article 1442).

  8. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
    1. A few types of disputes are not arbitrable under French law, such as certain aspects of fiscal, family and succession law disputes as well as criminal law and certain aspects of public law matters. Conversely, any dispute involving an economic interest may generally be referred to arbitration, including sensitive ones such as antitrust, securities law, IP, patents and certain aspects of bankruptcy law matters.

  9. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
    1. Third parties may be bound by an arbitration clause in the event of (i) the assignment of contracts or rights or (ii) the extension of the arbitration agreement. French courts have notably held that third parties may be bound by the arbitration clause if their participation in the negotiation, performance or termination of an agreement containing an arbitration clause can be demonstrated (Cour de Cassation, Civ 1, 27 March 2007, No. 04-20.842, ABS). In this regard, French courts held on several occasions that mere knowledge of the arbitration clause is not sufficient to make it enforceable against a third party (Paris Court of Appeal, 14 October 2019, No. 19/01346).

      Third parties can also join the arbitration process with the consent of all parties to the arbitration proceedings.

  10. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
    1. French law does not contain provisions addressing the consolidation of arbitral proceedings. However, French courts are not reluctant to admit the consolidation of separate arbitration proceedings provided that all interested parties have given their consent thereto. Such consent can be implied from the arbitration rules chosen by the parties or from a separate agreement.

  11. 11.

    Groups of companies
    Is the "group of companies doctrine" recognised in your jurisdiction?

    1. Under French law, a group of companies is not a legal entity having an autonomous legal existence. Rather, it is considered as a plurality of companies each having its own legal personality. As a consequence, a group of companies cannot, for instance, file a claim before a court or enter into a contract (Cour de Cassation, Com, 2 April 1996, No. 94-16.380) nor can it be ordered by a court to pay damages (see, eg, Cour de Cassation, Com, 15 November 2011, No. 10-21.701).

      While French law does not specifically recognise the "group of companies" doctrine, French courts have nevertheless admitted the extension of an arbitration clause signed by a company to a controlling entity. They have done so on the ground of either the intent of the parties, whether express or implied (see, eg, Paris Court of Appeal, 21 October 1983, Rev. Arb. 1984, p. 98), or the principle of effectiveness of the arbitration clause, underlining the existence of a “group of companies […] linked into an economic unit subject to a single authority” (see, eg, Paris Court of Appeal, 11 January 1990, No. 88-18.457, Orri).

  12. 12.Separability
    Are arbitration clauses considered separable from the main contract?
    1. Under French law, the arbitration clause is independent and separable from the agreement in which it is contained (CCP, articles 1447 and 1506). This principle was first adopted by French courts (see Cour de Cassation, Civ 1, 7 May 1963, Gosset, Bull. 1963, No. 246) and then codified in the French Code of Civil Procedure with the 2011 reform. Pursuant to this principle, French courts have recognised the validity of the arbitration clause included in a contract that is null and void. They have further developed on that basis a principle of validity and effectiveness of the arbitration clause independent of any national law.

  13. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
    1. The principle of competence-competence is recognised in France, both in its positive and negative effects. Under French law, the arbitral tribunal has exclusive jurisdiction to rule on objections to its jurisdiction (CCP, articles 1465 and 1506). The sole exception lies in the arbitration agreement being manifestly null or inapplicable to the dispute. Conversely, where French courts are sought to decide on objections to the jurisdiction of an arbitral tribunal, they must decline jurisdiction unless the arbitration agreement is manifestly null or inapplicable to the dispute (CCP, articles 1448(1) and 1506).

  14. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
    1. See question 7. Under French law, international arbitration agreements are not subject to any formal requirement (CCP, article 1507). It is, however, preferable to agree to arbitration in writing to be able to demonstrate the parties’ consent to arbitration when a dispute arises. It is also advisable to address the scope of the disputes to be submitted to arbitration, the seat and language of the arbitration as well as the supervising arbitral institution, if any.

      It is advisable to pay particular attention to the scope of the disputes to be submitted to arbitration. For instance, disputes relating to abrupt termination of long-standing contracts have notably been held to be of contractual nature in light of the Brussels I Regulation. Where applicable, such disputes fall within the scope of an arbitration clause addressing the performance of the contract (Paris Court of Appeal, 5 September 2019, No. 17/03703).

  15. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
    1. Both institutional and ad hoc, including UNCITRAL, international arbitrations are commonly used in France. There are, however, no available statistics showing their respective use.

  16. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
    1. French courts apply the principle of equality of the parties in the appointment of the arbitral tribunal, meaning that where there are multiple claimants or multiple respondents, and where the dispute is to be referred to three arbitrators, the multiple claimants, jointly, and the multiple respondents, jointly, shall each nominate an arbitrator. This principle has been held as being part of French international public policy (Cour de Cassation, Civ 1, 7 January 1992, Dutco, Bull I, No. 2). It is therefore advisable in practice that parties to multi-party agreements address the procedure for the constitution of the arbitral tribunal following that principle in the arbitration agreement. This can also be done by reference to arbitration rules (eg, ICC Rules, article 12(6)).

      The CCP expressly provides that if the parties fail to agree on the procedure for constituting the arbitral tribunal, the administering authority or, in the absence thereof, the judge acting in support of the arbitration shall appoint the arbitrator(s) (CCP, articles 1453 and 1506).

    Commencing the arbitration

  17. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
    1. There is no specific French law rule governing the commencement of arbitration proceedings. The CCP simply provides that a dispute shall be submitted to the arbitral tribunal either jointly by the parties or by the most diligent party (CCP, articles 1462 and 1506). In practice, arbitration proceedings begin with the claimant’s submission of a request for arbitration to the respondent. The CCP does not provide for any requirement as to the form of the request. There must, however, be no doubt as to the claimant’s intent to submit the dispute to arbitration.

      French arbitration provisions do not provide for any statute of limitation applicable to arbitration proceedings.

    Choice of law

  18. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
    1. In domestic arbitration, the arbitral tribunal decides the dispute in accordance with the rules of law, unless the parties have empowered it to act as amiable compositeur (CCP, article 1478). As for international arbitration, the tribunal decides the dispute in accordance with the rules of law chosen by the parties or, where no such a choice has been made, in accordance with the rules that it deems appropriate (CCP, article 1511(1)). Trade usages must be taken into account in either case (CCP, article 1511(2)). In addition, the tribunal may rule as amiable compositeur if the parties have empowered it to do so (CCP, article 1512).

    Appointing the tribunal

  19. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
    1. Under French law, the parties’ choice of arbitrator shall prevail. Nonetheless, the parties must appoint arbitrators that are independent and impartial (CCP, articles 1456(2) and 1506). In doing so, the parties must further comply with the principle of equality in the appointment of arbitrators (see question 16). The non-fulfilment of these requirements can lead to the annulment of the award on the grounds of improper constitution of the tribunal or violation of French (domestic or international) public policy (CCP, article 1492(3) and (5) for domestic arbitration and 1520(2) and (5) for international arbitration).

  20. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
    1. Non-French nationals can act as arbitrators in arbitrations seated in France and may attend hearings held in France, provided that they comply with any applicable visa requirements.

  21. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
    1. When the parties have not agreed on the procedure for appointing the arbitrators or the procedure has failed, French law provides for two distinct appointment mechanisms, depending on whether the dispute is to be decided by one or three arbitrators (CCP, articles 1452 and 1506). 

      • Where there is to be a sole arbitrator, he or she shall be appointed by the institution responsible for administering the arbitration or the appointing authority agreed upon by the parties, where there is no such authority, by the judge acting in support of the arbitration (juge d’appui) (CCP, article 1452(1) and 1506). In international arbitration, the judge acting in support of the arbitration is usually the President of the Paris High Court, unless otherwise agreed by the parties (CCP, article 1505).
      • As for three-arbitrator tribunals, each party shall appoint an arbitrator and the two arbitrators so appointed shall appoint the third arbitrator. If one of the parties fails to appoint its arbitrator within one month following receipt of a request to that effect by the other party, or if the two arbitrators cannot agree on the third arbitrator within one month of the acceptation of their mandate, the arbitral institution or, in the absence thereof, the French judge acting in support of the arbitration shall nominate the missing arbitrator(s) (CCP, article 1452(2)).
  22. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
    1. While, unlike French judges, arbitrators may in principle be held personally liable, they nonetheless benefit from a relative immunity in relation to the performance of their judicial activities. In particular, arbitrators cannot be held liable for misjudgement, error of law or error of fact (Paris Court of Appeal, 22 May 1991, Rev. Arb. 1996, p. 476). French courts only upheld liability in case of particularly serious breaches such as wilful or gross misconduct, fraud or denial of justice (see Cour de Cassation, Civ 1, 15 January 2014, Cah. arb. 2014, p. 299; R. Dupeyré, Les arbitres et centres d’arbitrage face à leurs responsabilités, ASA Bulletin, 2014, vol. 2, p. 145).

      The arbitrator is also liable for breaches of its obligations arising out of the arbitrator contract (eg, lack of independence, failure to disclose, breach of confidentiality). In a very recent case, parties sought to engage the arbitrators’ liability because of the partial setting aside of their award for breach of due process. The Paris High Court held that the violation of a fundamental principle of procedure was not sufficient to constitute a serious breach by the arbitrator of his contract giving rise to liability (Tribunal de grande instance, 22 May 2017, No. 14/4717, Blow Pack).

  23. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
    1. There are no specific means to secure payment of arbitrators’ fees under French law. As arbitrators have entered into a contract with the parties, disputes over the payment of their fees must be tackled as a contractual dispute between the party refusing to pay and the arbitrator. Consequently, an arbitrator facing a party refusing to pay the fees can file a claim before the courts of competent jurisdiction to recover his or her fees.

      In a recent case before French courts, three experimented arbitrators pursued a claim for the recovery of their fees against the successful party, although the latter had paid its share of the arbitrators’ fees. The Paris Court of Appeal granted the arbitrators’ requests, holding that “it results from the arbitrator’ contract […] a joint obligation of payment of the arbitrators’ fees whose mission have been performed in the common interest of the parties”. The French Supreme Court confirmed this decision (Cour de Cassation, Civ 1, 1 February 2017, No. 15-25.687).

      Most arbitration institutions provide fundholding services.

    Challenges to arbitrators

  24. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
    1. A party may challenge an arbitrator on the ground of lack of independence or impartiality or on the ground of non-compliance with the requirements set forth in the arbitration agreement.                 

      Challenges of arbitrators shall be submitted to the arbitral institution in charge of administering the proceedings in accordance with the applicable procedure or, absent any such institution, to the French judge acting as juge d’appui within one month of the disclosure or the discovery of the fact at issue (CCP, articles 1456(3) and 1506). If the party does not challenge the arbitrator within the applicable time limit, it is precluded from challenging the award on the ground of the lack of independence or impartiality of the arbitrators (Cour de Cassation, Civ 1, 15 June 2017, No. 16-17.108, République de Guinée équatoriale).

      While the IBA Guidelines on Conflict of Interests in International Arbitration are not legally binding unless otherwise agreed by the parties, they are often taken into account by arbitral institutions and French judges in deciding on challenges of arbitrators.

    Interim relief

  25. 25.

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

    1. Under French law, the existence of an arbitration agreement does not, in principle, preclude applications for evidentiary, conservatory and provisional measures from French courts (CCP, articles 1449(1) and 1506, unless otherwise agreed by the parties). Subject to the provisions governing conservatory attachments and judicial security, applications for provisional measures shall be made to the President of the competent High Court or Tribunal of Commerce (CCP, articles 1449(2) and 1506). Once constituted and unless otherwise agreed, the arbitral tribunal may also order any evidentiary (CCP, articles 1467 and 1506), provisional or conservatory measures that it deems appropriate, except for judicial security and conservatory attachment of assets located in France, upon which French courts have exclusive jurisdiction (CCP, articles 1468 and 1506). 

      While it is theoretically possible to seek anti-suit injunctions under French law (by seizing the referee judge who can order “any measure” along with penalties), French courts are reluctant to order such injunctions. French scholars do not support this possibility either (see, eg, E Gaillard, Il est interdit d’interdire: réflexion sur l’utilisation des anti-suit injunctions dans l’arbitrage commercial international, Rev. Arb. 2004, p. 47). In addition, anti-suit injunctions have been found to be incompatible with the Brussels I Regulation (ECJ, West Tanker, 10 February 2009, Case No. C-185/07, Europe April 2009, com. 176, note Idot).

  26. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
    1. French law is silent on security for costs. We are not aware of any court decision ordering a party to provide security for costs. French scholars are, however, of the opinion that both arbitral tribunals and French courts can order a party to do so.

    Procedure

  27. 27.

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

    1. While the parties and the tribunal are free to determine the procedural rules governing the conduct of the arbitration, they must nonetheless comply with several mandatory procedural rules. For example, the tribunal must comply with the terms of its mission, the principles of due process and equality between the parties as well as French international public policy, failing which the award could be annulled or non-enforceable (CCP, articles 1492, 1510 and 1520). In addition, both the parties and the tribunal must act diligently and in good faith in the conduct of the arbitration (CCP, articles 1464(3) and 1506). In particular, a party that, knowingly and without a legitimate reason, fails to object to an irregularity before the tribunal in a timely manner is deemed to have waived its right to avail itself of such irregularity (CCP, articles 1466 and 1506).

      Furthermore, when the parties or the arbitral tribunal have chosen French law as the substantive law governing the dispute, specific limitation periods rules may apply. Article 2224 of the French Civil Code (CC) provides for a five years limitation period running from the day when the owner of a right knew or should have known the facts giving rise to the dispute. Pursuant to article 2241 of the CC, a legal claim interrupts this limitation period. French courts have held that a request for arbitration has the same effect (Cour de Cassation, Civ 2, 11 December 1985, No. 84-14.209).

  28. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
    1. In practice, the arbitration will proceed if the respondent fails to participate or “defaults”. The arbitral institution or the courts, as the case may be, will appoint the arbitrator for the defaulting party. Once constituted, the tribunal will have to ensure that the proceedings comply to the extent possible with the principle of due process, failing which the award could be annulled or unenforceable. For example, the defaulting party must be informed of the progress of the proceedings, and must receive all communications and submissions.

  29. 29.

    Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Arbitration generally be taken into account?

    1. Both written and oral evidence are generally admitted. Pursuant to the CCP, the tribunal must take all necessary steps concerning evidentiary matters (CCP, articles 1467(1) and 1506). It follows that a tribunal can, for example, nominate an expert, hear witnesses or order the production of documents (CCP, article 1467(2)–(3)).

      The IBA Rules on the Taking of Evidence in International Commercial Arbitration, which are considered to reflect a common law adversarial approach of the taking of evidence, often provide guidance to the parties and the tribunal.

      The 2018 Rules on the Efficient Conduct of Proceedings in International Arbitration, also known as the Prague Rules, are not mandatory unless the parties agrees or the tribunal decides that they should apply. Such rules provide for a more proactive and inquisitorial role of the tribunal in the taking of evidence, more in line with the civil law tradition of dispute adjudication. While it would be premature to say that they are expected to replace the IBA Rules as the main guidelines for the taking of evidence in arbitration, it cannot be excluded that parties from civil law jurisdictions will increasingly agree to use the Prague Rules.

  30. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
    1. Prior to the constitution of the arbitral tribunal, a party may apply to courts for measures relating to the taking of evidence that may later be used in the arbitration. In particular, an application may be made to the President of the High Court or of the Tribunal of Commerce to obtain measures preserving or establishing evidence upon which the resolution of the dispute may depend (CCP, articles 1449, 1506 and 145).

      Once the arbitral tribunal is constituted, a party to the arbitration may apply to the President of the High Court for the purpose of obtaining the production of evidence held by a third party or the copy of an official (acte authentique) or private deed (acte sous seing privé) to which it was not a party (CCP, articles 1469 and 1506). Such an application shall be heard and decided in ex parte proceedings, and penalties may be attached to the court’s orders.

      In addition, a party to an arbitration can make a request for verification of handwriting or a claim of forgery before French courts, if the parties have so agreed.

  31. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
    1. The tribunal may enjoin a party to produce documents in its possession, determine the manner in which such documents are to be produced and, if necessary, attach penalties along with such injunction (CCP, articles 1467(3) and 1506). French courts have recognised the arbitral tribunal’s power to draw adverse inferences from a party’s failure to produce documents without satisfactory explanations. The IBA Rules on the Taking of Evidence in International Commercial Arbitration often provide guidance to the parties and the tribunal.

  32. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
    1. No. The CCP does not require that there be a final hearing on the merits. This means that arbitration proceedings can theoretically be conducted in writing only. However, final hearings are often held in practice.

  33. 33.

    Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?

    1. Yes. Hearings and procedural meetings may take place elsewhere.

    Award

  34. 34.Majority decisions
    Can the tribunal decide by majority?
    1. Yes. Pursuant to the CCP, an award shall be made by majority decision unless, for international arbitration only, the arbitration agreement provides otherwise (CCP, articles 1480 and 1513(1)). If there is no majority in an international arbitration, the president of the arbitral tribunal shall rule alone (CCP, article 1513(3)). An award made by majority decision or by the president alone is deemed to have the same legal effect as an award made by all arbitrators (CCP, article 1513(4)).

  35. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
    1. The remedies or relief that an arbitral tribunal may grant will depend on the law(s) applicable to the merits of the case or the procedure. French law, should it apply, does not expressly prohibit the granting of any particular types of remedies or relief.

  36. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
    1. Yes. Dissenting opinions are permitted under French law as long as the arbitrator complies with the principles of collegiality and confidentiality of the deliberations. Dissenting opinions are however not common in practice.

  37. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
    1. Under French law, the award must state: (i) the full names of the parties as well as their domicile or corporate headquarters, (ii) the names of the parties’ counsel, if applicable, (iii) the names of the arbitrator(s) who made the award, (iv) the date on which the award was made, and (v) the place where the award was made (CCP, articles 1481 and 1506). The award shall also succinctly set forth the respective claims and arguments of the parties and state the reasons upon which it is based (CCP, articles 1482 and 1506). In addition, an international award must be signed by all the arbitrators (CCP, article 1513(1)), subject to the following two exceptions: (i) if a minority of the arbitrators refuses to sign, the other arbitrators shall so state in the award, and (ii) if the president rules alone and if the other arbitrators refuse to sign, the president alone shall sign the award (CCP, article 1513(3)). A domestic award that fails to comply with these requirements will be void (CCP, article 1483). By contrast, an international award that fails to comply with these requirements will not be annulled or deemed unenforceable in France (CCP, article 1520).

  38. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
    1. While the CCP does not provide any time limit for the tribunal’s mandate and the rendering of an international award, it states that the duration of the tribunal’s mandate in a domestic arbitration shall be limited to six months from the date on which the tribunal is seized of the dispute (CCP, article 1463(1)). The CCP also expressly recognises the power of the parties and, where there is no agreement of the parties, of the judge acting in support of the arbitration to limit or extend such time limit (CCP, article 1463(2)). The parties can agree on a time limit, for example, by referring to a set of arbitration rules in their arbitration agreement. If the parties refer to a set of institutional arbitration rules, it will likely be for the institution to rule on a request to extend the time limit.

      Additionally, French courts held that in the silence of the parties and the arbitral tribunal, an arbitral award has to be notified to the parties by notification (signification), failing which, the one-month time limit for an action to set aside an award (see question 42) does not start running (Aix-en-Provence Court of Appeal, 14 November 2019, No. 19/01608).

      Finally, unless otherwise agreed by the parties, the time limit for requesting that the tribunal interpret or correct the award is three months from the date of the notification of the award to the parties (CCP, articles 1486 and 1506).

    Costs and interest

  39. 39.

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

    1. Yes, parties are able to recover fees paid and costs incurred. Should French law apply, the tribunal has discretionary power to determine the share of the fees and expenses of the tribunal as well as the administrative expenses that each party shall pay. The tribunal can also order one party to reimburse all or part of the legal fees of the other party’s counsel. While there is no “loser pays” rule, tribunals frequently order the losing party to reimburse all or part of the reasonable fees of the winning party and pay the arbitration costs.

  40. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
    1. Under French substantive law, interest can be included on both the principal claim and the costs. Unless the parties agree otherwise, the interest rate is fixed by statute.

    Challenging awards

  41. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
    1. International awards made in France cannot be appealed. They may only be challenged through an action to set aside the award (CCP, article 1518). However, domestic awards may be appealed if the parties so agree (CCP, article 1489).

  42. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
    1. Pursuant to article 1520 of the CCP, international awards made in France may only be set aside on the basis of the following five limitative grounds:

      • the tribunal wrongly upheld or declined jurisdiction; 
      • the tribunal was not properly constituted; 
      • the tribunal ruled without complying with the mandate conferred upon it;
      • due process was violated; or
      • recognition or enforcement of the award is contrary to international public policy.

      The above grounds also apply to (i) appeals of orders granting or denying recognition or enforcement of an arbitral award made abroad (CCP, article 1525) and (ii) the setting aside of domestic awards, which may be challenged on the basis of additional grounds (ie, if the award failed to state the reasons on which it is based, the date on which it was made, the names or signatures of the arbitrator(s) having made the award; or where the award was not made by a majority decision) (CCP, article 1492). Actions to set aside a domestic arbitral award must be initiated within one month of the day the arbitral award was notified to the parties (CCP, article 1494).

      In addition, it is possible to seek the revision of domestic or international awards in specific circumstances (eg, fraud, withholding of a determinative evidence by one party, false testimonies) before the arbitral tribunal, or if it cannot be reconvened, before the Court of Appeal, which would have had jurisdiction to hear an action to set aside the award (CCP, articles 1502 and 1506).

  43. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
    1. Parties to international arbitration, as opposed to domestic arbitration, may, at any time, expressly waive their right to bring an action to set aside the award. When such right has been waived, the parties nonetheless retain their right to appeal an enforcement order. The appeal must be brought within one month following notification of the award bearing the enforcement order (CCP, articles 1491 for domestic arbitration and 1522 for international arbitration).

    Enforcement in your jurisdiction

  44. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
    1. The setting-aside of a foreign award by a court at the seat of arbitration is not a ground for denying enforcement of that award in France (Cour de Cassation, Civ 1, 29 June 2007, Putrabali, Bull. 2007, I, No. 250). French courts’ review of international awards is strictly limited to the five grounds set forth by article 1520 of the CCP (see question 42).

      In this regard, only the High Court of Paris is competent to enforce an award rendered in a foreign country (CCP, article 1516).

  45. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
    1. French courts are generally considered as pro-arbitration and annulments of awards or decisions denying enforcement of awards are scarce. However, it appears that in the past three years approximately 25 per cent of the recourses for setting aside an award lodged before the Paris Court of Appeal were successful (T. Clay, Arbitrage et modes alternatifs de règlement des litiges, November 2017–December 2018, Recueil Dalloz 2018, p. 2448).

      The five limitative grounds of article 1520 of the CCP for the setting aside of international awards made in France or the appeal of orders granting or denying enforcement or recognition of foreign awards are narrowly construed by the courts (see question 42). 

      French courts are empowered to review de novo all relevant issues of fact and law in relation to the tribunal’s jurisdiction (article 1520(1)), the constitution of the tribunal (article 1520(2)) as well as alleged violations of international public policy (article 1520(5)).

      However, French courts’ review of awards is limited by two principles. First, French courts cannot review the merits of the award. In particular, French courts have consistently ruled that an award cannot be set aside or denied enforcement on the basis of errors of fact or law. Second, French courts ensure that the principle of estoppel is complied with. The principle of estoppel is embodied in article 1466 of the CCP (which states that "a party that knowingly and without a legitimate reason fails to object to an irregularity before the arbitral tribunal in a timely manner shall be deemed to have waived its right to avail itself of such irregularity"). This principle applies to both procedural or substantive objections against the award. As regards procedural objections, this principle means that an action based on any of the grounds set forth in article 1520 of the CCP will only be admissible provided that the applicant has raised appropriate objections on a timely basis during the arbitration proceedings. As regards substantive objections, the applicant’s legal or factual arguments will only be admissible before French courts provided that those arguments do not contradict the applicant’s contentions put forward before the arbitral tribunal (Cour de Cassation, Civ 1, 6 July 2005, No. 01-15912, Golshani).

  46. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
    1. Until recently, rules governing sovereign immunity from enforcement derived from case law. On 9 December 2016, Law No. 2016-1691 (the Sapin II Law) was promulgated and introduced new article L. 111-1-1 to L. 111-1-3 in the Code of Civil Enforcement Proceedings (CCEP), which more strictly frame the implementation of enforcement measures against state assets.

      Article L.111-1-1 of the CCEP provides that enforcement measures on state assets can only be carried out upon prior authorisation of a judge in an ex parte order, while under prior case law, no such authorisation was required.

      In addition, article L.111-1-2 of the CCEP provides that conservatory or enforcement measures against state assets may only be granted if at least one of the following requirements is met: (i) the state has expressly consented to the application of such measures, (ii) the state has reserved or affected the assets to the satisfaction of the claim that is the purpose of the proceedings, or (iii) the assets at issue are specifically used or intended to be used by the state for purposes unrelated to non-commercial public service and are linked to the entity against which the proceedings are initiated.

      Finally, with respect to diplomatic immunity, article L.111-1-3 of the CCEP provides that a special and express waiver of the state is required for pursuing provisional conservatory or enforcement measures over diplomatic assets.

      On 10 January 2018, in Commisimpex v République du Congo, the Cour de Cassation ruled that, while the above provisions of the CCEP do not apply to enforcement measures pursued prior to their entry into force, they should nonetheless be considered when ruling on such measures. In this case, the Cour de Cassation decided that a state’s waiver of immunity from enforcement in relation to diplomatic assets had to be “specific” and “express” to be valid. By so deciding, the Cour de Cassation overturned its own precedent rendered in the same case on 13 May 2015, according to which customary international law only required an “express” waiver (Cour de Cassation, Civ 1, 10 January 2018, No. 16-22.494).

    Further considerations

  47. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
    1. The CCP provides that domestic arbitral proceedings are confidential, unless otherwise agreed by the parties (CCP, article 1464(4)). However, this principle of confidentiality does not apply to international arbitration proceedings. Parties to proceedings seated in France will thus have to specifically agree on confidentiality if they wish the arbitration to be confidential.

  48. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
    1. International arbitration proceedings are not confidential (see question 47). Thus, unless otherwise agreed by the parties, evidence produced and pleadings filed in an international arbitration can arguably be relied upon in other proceedings such as in an action seeking to set aside the award.

  49. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
    1. The CCP does not include any provisions on ethics and professional standards. Nonetheless, counsel and arbitrators conducting proceedings in France will be bound by their own applicable ethical codes and professional standards of conduct.

      Note that the IBA Guidelines on Conflicts of Interest in International Arbitration often provide guidance to the parties, arbitrators and arbitral institutions.

  50. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
    1. There are no particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration should be aware of, except for the mandatory procedural rules described above (see question 27). There is no standardised procedure under French law. In the absence of an agreement by the parties, the tribunal shall apply the rules of procedure that it determines to be appropriate after consultation with the parties.

  51. 51.

    Third-party funding
    Is third-party funding permitted in your jurisdiction? If so, are there any rules governing its use?

    1. While French law does not include any specific provisions regarding third-party funding, French courts held that contracts between funders and parties to arbitration are agreements sui generis, confirming that third-party funding is permitted in practice (Versailles Court of Appeal, 1 June 2006, No. 05/01038).

      Conflict of interest and disclosure of the third-party funder are nevertheless central issues in France. The Paris Bar Association has issued two reports (published in 2014 and 2017) on the ethical issues raised by this third-party funding.

Interested in contributing to this Know-how?

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

Questions

    Infrastructure

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

    Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with, and supportive of, the law and practice of international arbitration?


  7. Agreement to arbitrate

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

    Groups of companies
    Is the "group of companies doctrine" recognised in your jurisdiction?


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

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

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

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

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

  31. 25.

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


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

  34. 27.

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


  35. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
  36. 29.

    Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Arbitration generally be taken into account?


  37. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
  38. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
  39. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
  40. 33.

    Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?


  41. Award

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

  48. 39.

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


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

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

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

  59. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
  60. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
  61. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
  62. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
  63. 51.

    Third-party funding
    Is third-party funding permitted in your jurisdiction? If so, are there any rules governing its use?