International Arbitration 2023 Comparisons

It has become widespread practice for parties to French law governed cross-border matters of significant value to submit their disputes to international arbitration, predominantly choosing the arbitration rules of the International Chamber of Commerce (ICC). This preference is driven by the possibility of keeping the arbitration proceedings confidential, the speed and digitalisation of arbitration proceedings compared to litigation, the flexibility offered in terms of appointment of arbitrators and choice of procedural rules, and the pro-arbitration nature of French law (ease of enforcement of the arbitration award before the French courts and relative non-interference of French courts in the arbitration process).

The key industries in France for international arbitration proceedings are construction, energy, industry and digital technologies. Disputes most often relate to contractual breaches or brutal termination of commercial relationships.

The key arbitration institution in France is the International Chamber of Commerce’s International Court of Arbitration (ICC). Apart from the ICC, France has other arbitration institutions such as the French Association for Arbitration (Association Française d’Arbitrage), the Regional Chamber of Arbitration (Chambre Régionale d’Arbitrage), the International Arbitration Chamber of Paris (Chambre Arbitrale Internationale de Paris), the Paris Centre of Mediation and Arbitration (Centre de Médiation et d’Arbitrage de Paris, CMAP), and the European Court of Arbitration located in Strasbourg.

Specialised arbitration institutions also exist in France: for example, the French Arbitration Centre for Reinsurance and Insurance (Centre Français d’Arbitrage de Reassurance et d’Assurance, CEFAREA) and the Paris Maritime Arbitration Chamber (La Chambre Arbitrale Maritime de Paris).

French law establishes a supporting judge, acting to ensure the efficiency of arbitral proceedings and resolve procedural difficulties, notably disputes relating to the constitution of the arbitral tribunal. Article 1505 of the French Civil Procedure Code (FCPC) specifies that, unless provided otherwise, in international arbitration, the supporting judge is the Chairman of the “Tribunal judiciaire” of Paris.

The International Commercial Chamber of the Paris Commercial Court and the Paris Court of Appeal (known as the “ICCP-CA”), created in 2018, are specialised chambers for international business disputes. The ICCP-CA has jurisdiction to handle set-aside proceedings and appeals against decisions refusing the enforcement of an international arbitral award issued in France (Article 1523 of the French Civil Procedure Code). The judges on the chamber are all fluent in English, hearings may be conducted in English without translation and documents may be disclosed in English without translation.

French arbitration law is mainly codified in Articles 1442 to 1527 of the French Civil Procedure Code and Articles 2059 to 2061 of the French Civil Code. The French Civil Procedure Code distinguishes between international arbitration (Articles 1504 to 1527 of the French Civil Procedure Code) and domestic arbitration (Articles 1442 to 1503 of the French Civil Procedure Code, as well as Articles 2059 to 2061 of the French Civil Code). Certain articles of the French Civil Procedure Code applicable to domestic arbitration are equally applicable to international arbitration, except if the parties agree otherwise (Article 1506 of the French Civil Procedure Code).

Arbitration is international if it involves “international trade interests” (Article 1504 of the French Civil Procedure Code). An arbitration is therefore deemed international when the underlying economic transaction does not unwind in one country only, regardless of the parties’ nationality, the applicable laws, or the arbitration seat (Cour de cassation, First Civil Chamber, 26 January 2011, No 09-10.198; Paris Court of Appeal, 7 February 2023, No 20/08604).

French courts, notably the French Cour de cassation and the Paris Court of Appeal, also play a vital role in interpreting the arbitration-related legislation in France.

French arbitration law is not based on the UNCITRAL Model Law on International Commercial Arbitration. It largely pre-dates the UNCITRAL Model Law and differs from it in several aspects such as the following.

• The criteria for what constitutes an international arbitration: while Article 1(3) of the UNCITRAL Model Law recognises an approach based on the place of business of the parties or on the parties’ will, French law adopts a purely economic approach centred on the cross-border flow of capital, services, or assets (see above).
• The method to be followed by the arbitral tribunal in cases where the parties do not choose the substantive law applicable to their dispute: French law does not impose the application of conflict of law rules (Article 1511 of the French Civil Procedure Code), while Article 28 of the UNICTRAL Model Law does.
• The grounds for refusing the recognition and enforcement of an award: unlike the UNCITRAL Model Law (Article 36(i)(a)(v)), French law does not recognise the setting aside of an award by a court of the country in which it was made as a ground for refusing its recognition and enforcement in France (see 12.2 Enforcement Procedure).

Nevertheless, there are important common principles contained in French Arbitration Law and in the UNCITRAL Model Law, such as the principles of “competence-competence” and of separability or autonomy of the arbitration clause from the main contract.

There have not been significant changes to French national arbitration law in the past year.

The creation of a Code of international private law is currently being discussed. A draft code was submitted to public consultation by the Ministry of Justice up until 30 November 2022. Article 202 of the draft code contains one provision related to the possibility of seeking interim measures from French courts once the arbitral tribunal in an international arbitration is constituted:

“when the arbitral tribunal is constituted, but if it is not able to consider the request for such measures or does not have the power to order them, the French Courts have jurisdiction [to order them] if they are to be carried out in France and if the law applicable to the arbitral procedure does not provide the contrary […]”.

If adopted, this provision would constitute an evolution of French law, which currently provides that interim measures can only be sought from French courts so long as the arbitral tribunal is not constituted (Article 1449 of the French Civil Procedure Code).

There are no specific legal requirements for a valid arbitration agreement to be enforceable under French law. In domestic arbitration, an arbitration agreement must be in writing to be valid (Article 1443 of the French Civil Procedure Code). However, this article is not applicable to international arbitration.

Under French law, the scope of matters that can be referred to arbitration has steadily expanded over the last 30 years. As a result of this evolution, it can be reasonably considered that any matter relating to economic interests can prime facie be referred to arbitration.

However, certain subjects remain “non-arbitrable”. Article 2060 of the French Civil Code provides that arbitration is not possible in matters relating to personal status and capacity, divorce and legal separation, disputes concerning public bodies and institutions and, more generally, all matters relating to public order.

Nevertheless, the matters relating to public order that are not arbitrable are limited. They mainly concern criminal law in general, or fiscal matters. For example, disputes between the tax administration and a taxpayer concerning the determination of tax liability cannot be submitted to arbitration. In fact, many matters of public policy are “arbitrable” (transport law, intellectual property law, bankruptcy law, etc). An arbitral tribunal may hear disputes concerning infringements of competition rules (although it may not impose fines). An arbitration clause may be validly included in a company’s articles of association.

The courts will review whether the arbitral tribunal has correctly applied public policy issues.

Arbitration agreements are generally enforced by French courts. With respect to international arbitration, French courts have held that an arbitration clause is independent of the main contract. Subject to mandatory provisions of French law or international public policy, the validity and enforceability of an arbitration clause is assessed without reference to any national law (Cour de cassation, First Civil Chamber, 20 December 1993, Dalico). The rules of conflict of laws do not apply. Consequently, with respect to international arbitration, arbitration agreements are enforceable in France, provided that the parties have validly consented and that the agreements comply with mandatory international rules.

French law recognises the independence of arbitration agreements with respect to both domestic and international arbitration (Article 1447 of the French Civil Procedure Code for domestic arbitration, which applies to international arbitration unless otherwise agreed by the parties). Consequently, an arbitration clause is considered valid even if the rest of the contract containing it is invalid.

It should be noted that, from a French law point of view, international arbitration agreements are not governed by the law of the contract in which they are contained.

In international arbitration, the only limit on the parties’ autonomy to select arbitrators is respect for the principle of equality of the parties in the constitution of the arbitral tribunal, which implies that each party has an equal opportunity to participate in the constitution of the arbitral tribunal (Cour de cassation, First Civil Chamber, 7 January 1992, No 89-18.708; Court of Appeal of Paris, 3 July 2012, No 11/01974; Court of Appeal of Paris, 14 December 2021, No 19/12417).

In domestic arbitration, Article 1450 of the French Civil Procedure Code provides a limit to the parties’ autonomy in the selection of arbitrators by stating that only a natural person with full capacity to exercise their rights may act as an arbitrator.

For international arbitration, Article 1508 of the French Civil Procedure Code simply provides that the arbitration agreement may, either directly or by reference to arbitration rules or rules of procedure, designate the arbitrator(s) or provide for the terms and conditions of their appointment (Article 1508 of the French Civil Procedure Code).

While French law does not require arbitrators to have any specific qualifications or profession, the parties may, in the arbitration agreement, require the arbitrator to meet certain qualifications or conditions with regards to their profession, nationality or languages.

Nevertheless, it is worth noting that the exercise of certain professional activities is incompatible with the function of arbitrator. This professional incompatibility notably concerns magistrates (Article 8 of Ordinance No 58-1270 of 22 December 1958), officials, except for professors and those who have been authorised (Article 25-I and Article III of Law No 83-634 of 13 July 1983), members of parliament (Law No 2013-906 of 11 October 2013), and bailiffs (Article 20 of Decree No 56-222 of 29 February 1956).

When the parties are unable to agree on the choice of arbitrator(s) or on the terms and conditions of their appointment(s), Article 1452 of the French Civil Procedure Code provides for a default procedure whereby:

• where there is a sole arbitrator, if the parties do not agree on the choice of arbitrator, the arbitrator shall be appointed by the person responsible for organising the arbitration or, failing this, by the supporting judge; or
• where there are three arbitrators, each party chooses one arbitrator and the two arbitrators thus chosen appoint the third; if one party fails to choose an arbitrator within one month of receipt of the other party’s request to do so, or if the two arbitrators fail to agree on the choice of the third arbitrator within one month of acceptance of their appointment, the person responsible for organising the arbitration or, failing this, the supporting judge makes the appointment.

This default procedure also applies in the case of multiparty arbitrations. Article 1453 of the French Civil Procedure Code provides that when more than two parties are involved in a dispute and they are unable to agree on how the arbitral tribunal should be constituted, the person responsible for organising the arbitration or, failing this, the supporting judge, appoints the arbitrator(s).

The supporting judge can intervene in the selection of arbitrators when there is a dispute related to the constitution of the arbitral tribunal (Articles 1452 to 1454 of the French Civil Procedure Code), to the challenge or removal of arbitrators (Article 1456), or to their abstention, resignation or impediment (Article 1457 of the French Civil Procedure Code). Thus, the supporting judge may only have a subsidiary role.

However, the jurisdiction of the supporting judge in international arbitration is limited to the following situations (Article 1505 of the French Civil Procedure Code):

• the seat of arbitration is in France;
• the parties have agreed that French procedural law applies to the arbitration;
• the parties have expressly given jurisdiction to French courts over disputes related to the arbitration proceedings; or
• one of the parties is at risk of a denial of justice.

Article 1505 of the French Civil Procedure Code provides that, unless otherwise agreed by the parties, the supporting judge is the Chairman of the Tribunal judiciaire of Paris.

The intervention of the supporting judge may be requested by a party or by the arbitral tribunal. The application is lodged by a writ of summons. An accelerated procedure will apply to this proceeding (Article 1460 of the French Civil Procedure Code). The judgment is normally not subject to appeal except for decisions on the nullity or manifest inapplicability of the arbitration agreement (Articles 1455 and 1460 of the French Civil Procedure Code).

Pursuant to Article 1458 of the French Civil Procedure Code, an arbitrator can only be removed with the agreement of all the parties. However, when the parties cannot agree on the removal of an arbitrator, the dispute is settled by the arbitral institution or, in its absence, by the supporting judge, within one month of the disclosure or discovery of the contested fact (Article 1456 of the French Civil Procedure Code).

Article 1456 notably states that an arbitrator can be challenged on the ground of a lack of independence or impartiality (see 4.5 Arbitrator Requirements).

French arbitration law states that arbitrators must be independent and impartial, and requires them to disclose any circumstances likely to affect their independence or impartiality (Article 1456 of the of the French Civil Procedure Code). The requirement of independence and impartiality, as set out in Article 1456 of the French Civil Procedure Code, has been defined by case law as follows.

• An arbitrator’s independence is assessed on an objective approach that consists in identifying precise and verifiable factors external to the arbitrator that are likely to affect their freedom of judgment, such as personal, professional and/or economic ties with one of the parties.
• An arbitrator’s impartiality presupposes the absence of prejudices or biases likely to affect their judgment, which may result from multiple factors such as the arbitrator’s nationality, social, cultural or legal environment (Court of Appeal of Paris, 8 June 2021, No 19/02245; Court of Appeal of Paris, 4 May 2021, No 18/14593).

An arbitrator’s lack of independence may result in the set-aside of the award, notably on the grounds of improper constitution of the arbitration tribunal or on the ground of violation of international public policy (Article 1520(2) and (5) of the of the French Civil Procedure Code).

Moreover, the arbitrator, before accepting their assignment, must disclose any circumstances likely to affect their independence or impartiality (Articles 1456(2) of the French Civil Procedure Code). This obligation lasts throughout the arbitration proceedings. Thus, the arbitrator must disclose without any delay any circumstances likely to affect their independence or impartiality that may arise after acceptance of the assignment.

The scope of the disclosure obligation has been clarified by case law that considers that the arbitrator must reveal all circumstances likely to give rise to reasonable doubt in the minds of the parties as to the arbitrator’s independence (Cour de cassation, First Civil Chamber, 16 March 1999, No 96-12.748; Paris Court of Appeal, 22 February 2022, No 20/08929).

This obligation of disclosure applies not only to relations between the arbitrator and the parties, but also to the relations between the arbitrator and the parties’ lawyers or their law firms, whenever the facts considered are likely to affect, in the minds of the parties, the arbitrator’s independence and impartiality.

Moreover, the duty of arbitrators to disclose, and to provide information to enable the parties to exercise their right to challenge, must be assessed considering the notoriety of the situation criticised and its impact on the arbitrator’s judgment (Cour de cassation, Second Civil Chamber, 25 March 1999, No 94-18.976; Paris Court of Appeal, 18 September 2018, No 16/26009; Paris Court of Appeal, 25 February 2020, No 19/07575; Paris Court of Appeal, 22 February 2022, No 20/08929).

The principal arbitrations institutions also require arbitrators to be independent and impartial and contain a duty of disclosure (Article 11 of the ICC Rules of Arbitration and Article 18 of CMAP’s Arbitration Rules).

See 3.2 Arbitrability.

Like most national laws, French law recognises the principle of competence-competence in both domestic and international arbitration, which is deemed to have a positive and a negative effect.

Positively, the principle allows the arbitral tribunal to decide on its own jurisdiction (Article 1465 of the French Civil Procedure Code, applicable to international arbitration unless otherwise agreed by the parties). This principle is widely recognised by the French courts.

Negatively, the principle prohibits a state court, in the presence of an arbitration agreement that is prima facie applicable, to rule on the jurisdiction of an arbitral tribunal before the latter has heard the case (Article 1448, paragraph 1 of the French Civil Procedure Code). This means that, unless the arbitration agreement appears manifestly invalid or inapplicable, a state court will decline jurisdiction to hear the case and will let the arbitral tribunal rule on its own jurisdiction. This rule applies regardless of the seat of the arbitral tribunal.

However, a state court may not declare of its own motion that it lacks jurisdiction to hear the case (Article 1448, paragraph 2 of the French Civil Procedure Code, applicable to international arbitration unless the parties agree otherwise). One of the parties has to raise the application of the arbitration agreement.

It should be noted that the Brussels I bis Regulation No 1215/2012 on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters does not apply to arbitration.

In accordance with the principle of competence-competence, the French courts will give priority to the arbitral tribunal to decide on its jurisdiction (see 5.4 Timing of Challenge).

The parties may not challenge the jurisdiction of the arbitral tribunal before a state court until the arbitral tribunal has issued an award on its jurisdiction. The jurisdiction of the arbitral tribunal will be reviewed at the following stages:

• if the arbitral tribunal renders a partial award on its jurisdiction, this partial award may be challenged before the French courts – if the partial award confirms the jurisdiction of the arbitral tribunal, the challenge should not suspend the arbitration proceedings; or
• if the arbitral tribunal renders a final award on the merits of the case and on its jurisdiction, the court will examine the question at the stage of setting aside or enforcing the award.

When French courts review the jurisdiction of the arbitral tribunal, they apply a de novo standard. The French Cour de Cassation has held that the arbitrators’ decision is subject to a full legal and factual review by the court (Cour de cassation, First Civil Chamber, 6 October 2010, No 08-20.563, Abela).

French law recognises the principle of competence-competence in both domestic and international arbitration. As a result, French courts have an obligation to decline jurisdiction if a party raises the application of an arbitration agreement, unless the arbitration agreement appears manifestly invalid or inapplicable.

In principle, an arbitration agreement is binding only between the parties.

However, in international arbitration, French case law has gradually recognised the extension of the binding effect of an arbitration agreement to third parties who are directly involved in the performance of the contract containing the arbitration agreement and the disputes that may arise from it (Cour de cassation, First Civil Chamber, 27 March 2007, No 04-20.842, ABS).

Entities belonging to the same group may avail themselves of an arbitration agreement if they have participated in the negotiation, the conclusion, the performance or the termination of the contract containing the arbitration agreement (Court of Appeal of Paris, 21 October 1983, Dow Chemicals).

It should be noted that in general an international arbitration agreement may be automatically transferred to a third party (without its express consent) as a result of a transfer of rights or contracts. The international arbitration agreement is binding on any party asserting the rights of one of its contracting parties (Cour de cassation, First Civil Chamber, 8 February 2000, No 95-14.330).

Unless otherwise agreed, the arbitral tribunal may order any protective or provisional measure it deems appropriate (Article 1468 of the French Civil Procedure Code). The arbitral tribunal may order several types of interim remedies, including to maintain or restore the status quo, preserve assets or evidence, or facilitate the future execution of the award. However, French courts have exclusive jurisdiction to order provisional seizures and judicial mortgages. Furthermore, the arbitral tribunal cannot order interim measures against third parties given the relative effect of the arbitration agreement between parties.

To ensure the efficiency of its decision, the arbitral tribunal may set a penalty triggered by non-compliance with the interim measure. However, arbitral tribunals do not have coercive powers. Thus, the parties must seek enforcement of the interim measure before the national courts (see 6.2 Role of Courts).

Before the constitution of the arbitral tribunal, the parties may apply to the French courts for interim measures, without such an application being deemed to be a waiver of the arbitration agreement (Article 1449 of the French Civil Procedure Code). The President of the Judicial Court or the President of the Commercial Court – ruling in summary proceedings – may order the following:

• investigative measures aimed at obtaining evidence (including on an ex parte basis), provided that the requesting party meets certain conditions among which are the proportionality of the measure and the existence of a legitimate motive (Article 145 of the French Civil Procedure Code); and
• in urgent cases:
1. interim measures that do not raise any serious challenges or that the dispute justifies (Article 834 and 872 of the French Civil Procedure Code);
2. protective measures to avoid imminent damage or to stop a manifestly illegal nuisance (Article 835 and 873 of the French Civil Procedure Code); and
3. in certain cases, an interim payment or the performance of an obligation (Article 835 and 873 of the French Civil Procedure Code).

Usually, interim measures ordered by French courts are immediately enforceable and appeal against these decisions does not have suspensive effects. These interim measures are available if French courts have territorial jurisdiction, regardless of whether the arbitration agreement provides for a seat in France or abroad.

Once constituted, the arbitral tribunal has in principle exclusive jurisdiction to order interim measures (Article 1468 of the French Civil Procedure Code; see 6.1 Types of Relief). Yet, the parties may seek the courts’ assistance regarding interim measures that cannot be ordered by the arbitral tribunal, or the enforcement of interim measures ordered by the arbitral tribunal.

Even when the arbitral tribunal is constituted, French courts have exclusive jurisdiction to order provisional seizures and judicial mortgages and, upon authorisation of the arbitral tribunal, to order a third party to produce identified documents (Article 1469 of the French Civil Procedure Code).

French courts’ assistance is also needed when a party does not comply with an interim measure ordered by the arbitral tribunal. However, there is a debate as to whether an interim decision qualifies as an arbitral award and is subject to the French law regime of awards enforcement.

Emergency arbitration provisions provided for by the rules of arbitral institutions are not incompatible with French law. For example, the ICC Arbitration Rules provide the following:

• an emergency arbitrator may be appointed before the constitution of the arbitral tribunal;
• the emergency arbitrator’s decision is binding on the parties but cannot be enforced as an arbitral award; and
• an application for emergency arbitrator proceedings does not prevent a party from applying to national courts for any other urgent or conservatory measures.

French law does not include any specific provisions concerning security for costs. However, security for costs may be ordered by arbitral tribunals or the French courts under the conditions set out above for interim measures (see 6.1 Types of Relief and 6.2 Role of Courts).

Pursuant to Article 1509 of the French Civil Procedure Code, the parties have freedom to agree on the procedural rules applicable to their international arbitration proceedings. This is typically done by the parties incorporating a set of institutional rules that govern the arbitration procedure into the arbitration agreement. In the absence of an agreement by the parties, the arbitral tribunal shall set the applicable procedural rules (Article 1509 of the French Civil Procedure Code).

French law does not provide for mandatory procedural steps. Certain fundamental principles must, however, be observed irrespective of the procedural rules chosen by the parties, among which the obligation for the arbitral tribunal to respect the adversarial principle (principe du contradictoire), to treat the parties equally and to conduct the proceedings in an expeditious and loyal manner (Articles 1464 and 1510 of the French Civil Procedure Code).

Arbitrators are required to be independent and impartial (see 4.5 Arbitrator Requirements). They have a general duty to conduct the arbitration proceedings fairly, efficiently and, if possible, swiftly, and to decide on the dispute by rendering an award.

French law largely grants autonomy to the parties as regards the power of the arbitrators, notably concerning the conduct of the arbitration proceedings. Notwithstanding, the French Civil Procedure Code sets forth key powers of arbitrators in international arbitration, unless otherwise agreed by the parties, including the following:

• the ability for arbitrators, according to the principle of competence-competence, to decide on their own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement (Article 1465 of the French Civil Procedure Code);
• the ability to order the production of documents by a party (Article 1467 of the French Civil Procedure Code, see 8.2 Rules of Evidence); and
• the ability to order interim relief that the arbitral tribunal deems appropriate (Article 1468 of the French Civil Procedure Code, see 6.1 Types of Relief).

There are no particular qualifications or other requirements for legal representatives appearing in an arbitration seated in France. For internal arbitration, the parties can appear in proceedings with or without representation by the person of their choice (Articles 18, 19 and 1464 of the French Civil Procedure Code).

Though there is no similar provision for international arbitration, it is submitted that the same rules apply.

French law grants parties and arbitrators broad discretion in the conduct of proceedings, including the collection and submission of evidence. Article 1509 of the French Civil Procedure Code empowers the arbitral tribunal to define the applicable procedural rules, unless otherwise agreed by the parties. Hence, an arbitral tribunal seated in France may conduct a US-style discovery procedure, even though France is a civil law system.

In practice, the parties and arbitral tribunals having their seats in France routinely refer to the IBA Rules on the Taking of Evidence in International Arbitration, which is a balanced combination of the common law and civil law systems. In general, the parties produce documents upon which they intend to rely and then request documents by using the so-called Redfern Schedule (ie, a table detailing the parties’ grounds and objections for each document requested). A party may also apply to French courts, with the authorisation of the arbitral tribunal, to compel a third party to produce identified documents (Article 1469 of the French Civil Procedure Code).

When witness statements are submitted, requests for conducting a cross-examination of the witness are usually granted. Pursuant to Article 1467 of the French Civil Procedure Code, the arbitral tribunal may call upon any person to provide testimony, but witnesses shall not be sworn in.

As noted in 8.1 Collection and Submission of Evidence, the arbitral tribunal is free to choose the rules of evidence, unless otherwise agreed by the parties. Irrespective of the rules of evidence chosen, the arbitral tribunal shall ensure that the parties are treated equally and shall uphold the adversarial principle (Article 1510 of the French Civil Procedure Code).

Moreover, in domestic arbitration, the fundamental principles governing French court proceedings apply (Article 1464 of the French Civil Procedure Code). As a result, parties and arbitral tribunals have less leeway in defining the rules of evidence. For example, each party must prove the facts it relies on (Article 6 of the French Civil Procedure Code).

The arbitral tribunal may order a party to produce documents and set a penalty if a party does not comply with an injunction (Article 1467 of the French Civil Procedure Code). The arbitral tribunal may also draw adverse inferences from a failure to comply with a document production order. Upon authorisation of the arbitral tribunal, parties may apply to the French courts to compel a third party to produce documents (Article 1469 of the French Civil Procedure Code).

Neither the arbitral tribunal nor the French courts can compel witnesses to appear before the arbitral tribunal. However, the arbitral tribunal may draw adverse inferences from the non-appearance of witnesses.

Subject to legal obligations and unless the parties agree otherwise, domestic arbitration proceedings are confidential (Article 1464 of the French Civil Procedure Code). Such confidentiality applies to the parties and the arbitrators. It covers the documents exchanged during the proceedings, the hearings, the award and the existence of the proceedings.

Conversely, unless the parties agree otherwise, international arbitration proceedings are not confidential under French law. The parties can include a confidentiality provision in the arbitration agreement or seek an order from the arbitral tribunal that the proceedings be confidential.

The arbitral award must set forth respective claims and arguments of the parties and be reasoned (Article 1482 of the French Civil Procedure Code). However, the absence of motivation does not constitute in itself a ground for the set-aside of an award.

The award shall also indicate the identity of the parties and their counsels, of the arbitrators, its date, and the place where it was rendered (Article 1481 of the French Civil Procedure Code).

The award is rendered by a majority vote of arbitrators and signed by the arbitrators. However, if there be no majority, the award shall be made by the chairman of the arbitral tribunal alone. Moreover, if one of the arbitrators refuses to sign, it is mentioned in the award (Article 1513 of the French Civil Procedure Code).

French law does not provide specific rules regulating or restricting the types of remedies that an arbitral tribunal may award. Thus, all types of remedies are available provided that they are not contrary to international public order.

In this regard, it should be noted that punitive damages are not per se contrary to the international public order provided that the amount allocated is not “disproportionate regarding the damage suffered and the breach of contractual obligations” (Cour de cassation, First Civil Chamber, 1 December 2010, No 09-13.303; Cour de cassation, First Civil Chamber, 12 January 2022, No 20-16.189; Court of Appeal of Paris, 25 February 2020, No 17/18001).

French law does not provide any rules regulating or prohibiting the recovery of interest and legal costs.

In international arbitration, an award may not be appealed. International arbitration awards rendered in France can be set aside, except when the parties have waived their right to bring such action by special agreement (Articles 1518 and 1522 of the French Civil Procedure Code). However, international arbitration awards rendered abroad cannot be subject to set-aside proceedings in France.

The grounds for setting aside an award are set out exhaustively in Article 1520:

• the arbitral tribunal wrongly upheld or declined its jurisdiction;
• the arbitral tribunal was improperly constituted;
• the arbitral tribunal ruled without complying with the mission entrusted to it;
• the principle of adversarial proceeding was violated; or
• recognition and enforcement of the arbitral award is contrary to international public policy.

The set-aside request must be brought before the Court of Appeal in whose jurisdiction the award was made within one month of service of the decision (extended to three months for parties located abroad) (Article 1519 of the French Civil Procedure Code).

Under French law, the parties may not derogate from the provisions governing appeals in arbitration (Cour de cassation, First Civil Chamber, 13 March 2007, No 04-10.970). Thus, in international arbitration, parties cannot include a right to appeal the award in their arbitration agreement. Such a clause is deemed unwritten (Cour de cassation, First Civil Chamber, 13 March 2007, No 04-10.970).

Parties may waive their right to request to set aside the award by special agreement.

As international arbitral awards cannot be appealed, French courts have applied the strict principle of non-revision of awards for many years.

The standard of judicial review in set-aside proceedings has recently been reinforced by the Cour de cassation, which stated that, while the mission of the court of appeal is limited to the examination of the defects listed in Article 1520 of the French Civil Procedure Code (incompetence of the arbitral tribunal; irregular constitution; non-compliance with the arbitral tribunal’s terms of reference; breach of the adversarial principle; and conflict with international public policy), no limitation is placed on its power to investigate in law and in fact all the elements concerning the defects in question (Cour de cassation, First Civil Chamber, 7 September 2022, No 20-22.118).

As such, the Cour de cassation now considers that the review of the award’s conformity with international public policy is not limited to the evidence submitted to the arbitrators and that the reviewing judge is not bound by the findings, assessments and qualifications made by the arbitrators (Cour de cassation, First Civil Chamber, 23 March 2022, No 17-17.981).

Thus, the standard of judicial review in set-aside proceedings seems to be closer to a de novo review, this review, however, being limited to the defects listed in Article 1520 of the French Civil Procedure Code.

The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) was signed by France on 25 November 1958, ratified on 26 June 1959, and came into effect on 24 September 1959. France put forward one reservation upon ratifying the New York Convention, in relation to the principle of reciprocity: “France declares that it will apply the Convention on the basis of reciprocity, to the recognition and enforcement of awards made only in the territory of another contracting State”.

It should be noted that French law usually prevails over the New York Convention as permitted by its Article VII(1), since in many respects French law is more favourable to the recognition and enforcement of awards than the New York Convention itself. Thus, French courts rarely apply the New York Convention.

France is also a party to other international treaties containing provisions relating to the enforcement of awards, such as:

• European Convention on International Commercial Arbitration of 21 April 1961;
• Washington Convention on the Settlement of Investment Disputes of 8 March 1965; and
• Convention on the Settlement of Investment Disputes between States and Nationals of Other States of 18 March 1965 (which created the International Centre for the Settlement of Investment Disputes (ICSID)).

Articles 1514 to 1517 of the French Civil Procedure Code govern the proceedings applicable to the enforcement of foreign arbitral awards and international arbitration awards. To be enforced in France, the award must receive an enforcement decision of exequatur issued by the competent court. This procedure is not adversarial.

The party seeking exequatur must submit an ex-parte application to the competent court and prove (i) the existence of the award by producing the original award and the arbitration agreement or duly certified copies thereof (together with a translation of these documents if they were not drafted in French) and (ii) that such enforcement is not manifestly contrary to French international public policy.

Conflict with French international public policy is the only ground for refusal of exequatur. French courts define French international public policy as the values and principles that cannot be disregarded, even in an international context (Court of Appeal of Paris, 14 December 2021, No 19/12417).

In practice, French international public policy covers both substantive rules (principle of good faith in the performance of agreements, regulations governing foreign investment in France, certain principles of insolvency proceedings such as stay of individual proceedings against the debtor, international economic sanctions, prohibition of corruption and money laundering, etc) and procedural aspects (such as fair trials, equality of the parties, rights of the defence, fraud, etc).

Since conflict with French international public policy is the only ground for refusal of enforcement, French courts may confer exequatur even if the award has been set aside by the courts in the seat of arbitration since the setting aside of an award is not a ground for refusing it (Cour de cassation, First Civil Chamber, 23 March 1994, No 92-15.137; Cour de cassation, First Civil Chamber, 29 June 2007, No 05-18.053; Court of Appeal of Paris, 1 April 2014, No 12/15479). Similarly, the existence of ongoing set-aside proceedings has no impact on the exequatur of the award.

When the exequatur decision relates to a foreign award, it may be appealed within one month of service of the decision (Article 1525 of the French Civil Procedure Code). In contrast, when the exequatur decision concerns an international arbitration award issued in France, a distinction is made according to whether the decision grants or refuses exequatur, as follows.

• A decision refusing exequatur of an international arbitration award rendered in France can be appealed (Article 1523 of the French Civil Procedure Code).
• A decision granting exequatur may not be appealed except in the cases provided for in Article 1520 of the French Civil Procedure Code (incompetence of the arbitral tribunal, irregular constitution, non-compliance with the arbitral tribunal’s terms of reference, breach of the adversarial principle, conflict with international public policy) (Article 1524s and 1522(2) of the French Civil Procedure Code).

Regarding the enforcement stage, sovereign states and their emanations benefit from immunity against enforcement of arbitral awards under the conditions set forth by the “Sapin 2” law of 9 December 2016 as follows.

• First, under French law, enforcement measures with respect to property belonging to a foreign state must be authorised by a judge as a result of an ex parte order (Article L. 111-1-1 of the Code of Civil Procedures of Enforcement).
• Secondly, for the judge to authorise the proceedings, these enforcement measures must either (i) be expressly consented to by the relevant state, (ii) concern property reserved by the state for the satisfaction of the claim subject to the proceedings, or (iii) concern property used or intended to be used by the relevant state other than for non-commercial public service purposes (Article L. 111-1-2 of the Code of Civil Procedures of Enforcement).
• Finally, with regards to property used or intended to be used as part of a diplomatic mission of a foreign state or of its consular post, the waiver of sovereign immunity must be express and specific for it to be effective (Article L. 111-1-3 of the Code of Civil Procedures of Enforcement).

In general, French courts adopt a liberal approach regarding the enforcement of arbitral awards. As mentioned above, the existence of a conflict with French international public policy is the only ground for refusal of exequatur (see 12.2 Enforcement Procedure).

French law does not provide for class action or group arbitration. However, the French Civil Procedure Code refers to multiparty arbitration (Article 1453 of the French Civil Procedure Code).

French law does not provide any binding ethical codes or professional standards applicable to arbitrators. The only requirements are the independence and impartiality of arbitrators (Article 1456 of the French Civil Procedure Code). Nonetheless, parties and arbitrators may refer to non-binding ethical codes such as the International Bar Association Guidelines on Conflicts of Interest in International Arbitration. Moreover, French lawyers conducting arbitral proceedings must respect ethical principles, notably those set out in the Rules of Professional Conduct of the French Bar Association.

French law does not provide specific rules regulating or restricting third-party funding. However, it should be noted that, on 21 February 2017, the Paris Bar Council issued a resolution regarding third-party funding in arbitration proceedings. This resolution provides in essence the following recommendations:

• lawyers remain solely accountable to their client, not to the third-party funder;
• only the client (and not the lawyer) can communicate information about the case to the third-party funder; and
• lawyers should encourage their client to disclose the existence of third-party funding to arbitrators and warn their client about the possible consequences of non-disclosure (namely, a conflict of interest issue that may result in the nullity of the award).

French law does not provide specific rules regarding the consolidation of separate arbitral proceedings. However, when a judge and an arbitral tribunal, or two arbitral tribunals, are called upon to hear claims that may be tried together, the arbitral tribunal cannot unilaterally decide to dismiss the dispute as it might be considered to be a denial of justice, which is a violation of French international public policy.

Furthermore, arbitration rules of an arbitral institution may contain provisions relating to the consolidation of arbitral proceedings. For example, Article 10 of the ICC Rules of Arbitration and Article 15 of the CMAP Rules of Arbitration both state that the court may, at the request of a party, consolidate two or more arbitrations pending under the rules into a single arbitration, where:

• the parties have agreed to consolidation;
• all of the claims in the arbitrations are made under the same arbitration agreement or agreements; or
• the claims in the arbitrations are not made under the same arbitration agreement(s), but the arbitrations are between the same parties, the disputes in the arbitrations arise in connection with the same legal relationship, and the court finds the arbitration agreements to be compatible.

Third parties may be bound by arbitration agreement in certain circumstances (see 5.7 Jurisdiction Over Third Parties). Moreover, arbitral award is not res judicata regarding third parties. However, an award may be held against third parties and third parties can rely on the award (Cour de cassation, Commercial Chamber, 23 January 2007, No 05-19.523; Court of Appeal of Paris, 6 February 2014, No 12/14466).