The provisions currently governing arbitration in France may be found in:

• Section IV of the “Nouveau Code de Procédure Civile” (“NCPC”), which is made up of Decree No. 80–354 dated 14 May 1980 on Arbitration and Decree No. 81–500 dated 12 May 1981 on International Arbitration; and
• Articles 2059, 2060 and 2061 of the “Code Civil” (Civil Code), dealing with matters of arbitrability and with “clauses compromissoires” (clauses providing for the arbitration of future disputes).

The arbitration provisions in the NCPC pre-date the 1985 UNCITRAL Model Law, but they nevertheless establish a modern and flexible framework for arbitration.

Prior to 1789, arbitration was not commonly used, although it was allowed in most cases and made compulsory for settling certain family disputes by several ordinances adopted in the sixteenth century.

After the Revolution, arbitration was widely authorised and promoted pursuant to a Law dated 16 and 24 August 1790 as a reaction against the courts established by the Ancien Régime.

The Napoleonic Codes, and in particular the Civil Procedure Code adopted in 1806 and the Commercial Code, provided for a restricted use of arbitration in cases such as disputes related to maritime insurance or between shareholders of a commercial company. In other areas, case law authorised the submission of existing disputes to arbitration (“compromis”), but arbitration clauses relating to future disputes (“clauses compromissoires”) were not allowed.

Following the signature by France of the 1923 Geneva Protocol relating to arbitration clauses, a Law dated 31 December 1925 allowed such clauses in the case of disputes arising from commercial relationships (i.e. for disputes which would normally fall within the competence of the commercial courts).

Subsequent laws adopted from 1926 to 1975 dealt mainly with the scope of arbitration in specific areas without amending the procedural rules. The procedures for appeal and review of international arbitration awards were based on case law and a series of scattered legal texts. This situation frequently led to confusion and to abuse of the procedures for the challenge of the validity of arbitration agreements or of awards.

The Decree of 14 May 1980 transformed the practice of arbitration in that it:

• allowed the parties to set out in the arbitration agreement the procedural rules to be followed by the arbitrators, subject to certain general principles applicable to court proceedings;
• limited judicial interference in arbitral proceedings by vesting the arbitrators with the power to rule on the validity of the arbitration agreement and on their own jurisdiction, including the extent of their mandate; and
• consolidated and simplified the procedures for obtaining judicial review of an award.

Decree No. 81–500 dated 12 May 1981 on International Arbitration increases the autonomy and flexibility of the parties in the conduct of arbitration proceedings dealing with “international commercial interests”, regardless of the parties’ nationalities.

Arbitrability
In accordance with Article 2060 of the Civil Code, the following may not be submitted to arbitration:

• matters relating to the status and capacity of persons, divorce and judicial separation;
• disputes concerning public bodies (the State and local authorities, public entities and public institutions, except for establishments with a commercial activity, which have been authorised by a decree to do so; nevertheless it must be noted that a report dated 27 March 2007 proposes an amendment of the law allowing disputes involving public entities to be resolved in arbitration proceeding; and
• matters involving public policy.

Article 2061 of the Civil Code (as amended in 2001) provides that, subject to specific provisions of the law, clauses compromissoires are valid in contracts concluded by reason of a professional activity, regardless of the object of the contract. According to the previous wording of Article 2061, clauses compromissoires were only valid in respect of commercial disputes. Accordingly, the new wording of Article 2061 extends the validity of clauses compromissoires to disputes between professionals, including lawyers, doctors, etc. The validity of said clauses is correspondingly extended to disputes between individuals over the transfer or acquisition of a company’s shares. According to the previous wording of Article 2061, these transactions could only be subject to a clause compromissoire if such acquisition were deemed to be part of a commercial activity (i.e. if the purchaser was acquiring a controlling interest). According to case law, arbitration clauses included in contracts between professionals before the amendment of Article 2061, and therefore invalid at the time of the contract signing, may be validly applied after the entry into force of the amendment. Clauses compromissoires remain invalid in non-commercial or non-professional disputes, but parties may validly agree to submit existing disputes to arbitration (compromis).

Under specific rules, arbitration is still considered as prohibited in disputes involving, in particular, sales to consumers or labour relations. The automatic stay of actions against debtors in bankruptcy imposed by French law also applies to arbitration proceedings, unless the trustee in bankruptcy elects to comply with the arbitration clause in issue.

In accordance with well-established principles of case law, most restrictions on the validity of arbitration agreements do not apply to international arbitration. Thus the following are valid in international arbitration matters:

• arbitration agreements, regardless of whether they result from clauses compromissoires or compromis, and regardless of the subject matter concerned; and
• arbitration agreements involving the State or State-owned entities or issues of public policy, except where the subject matter of the dispute involves a breach of the principles forming part of French international public policy (e.g. bribery of civil servants, drug trafficking, terrorism, etc.).

Domestic and international arbitration
French law makes a fundamental distinction between domestic and international arbitration.
Titles I–IV of Section IV of the NCPC (Articles 1442–1491), introduced by Decree No. 80–354 dated 14 May 1980, deal with French procedural law on arbitration as follows:

• Title I arbitration agreements (arbitration clauses and submissions);
• Title II the arbitral proceedings;
• Title III the arbitral award; and
• Title IV means of recourse.

In the rest of this chapter, the above Titles I–IV will be referred to as rules on domestic arbitration.

Titles V and VI of Section IV (Articles 1492–1507) of the NCPC, enacted by Decree No. 81–500 dated 12 May 1981, contain specific rules applicable to international arbitration, including: arbitration agreements; the arbitral tribunal; and the recognition, enforcement and review of arbitral awards (rendered abroad or in international arbitration proceedings in France).

Article 1495 NCPC gives the parties greater flexibility and party autonomy in international arbitration. Pursuant to this Article, the provisions governing arbitration agreements, arbitral proceedings and arbitral awards set out in Titles I–III of the general section on domestic arbitration apply to international arbitration only if the parties have not agreed otherwise.

Pursuant to Article 1492 NCPC, arbitration is defined as international if it “involves international commercial interests”. This provision codified the main test previously applied in French case law over several decades. It relies on economic rather than legal criteria and establishes that a transaction is international where it involves flows of goods, services or currency over borders, regardless of the nationality of the parties, the law applicable to the agreement or the seat of the arbitration.

Transitional provisions
Decree No. 81–500 on International Arbitration applies to all arbitration agreements made after 14 May 1981. The provisions concerning the enforcement and challenge of awards apply to awards rendered after that date.

Formal requirements
According to the provisions on domestic arbitration (Article 1443 NCPC), both an agreement to arbitrate future disputes (clause compromissoire) and an agreement to submit an existing dispute to arbitration (compromis) must be in writing. A compromis must set out the subject matter of the dispute referred to arbitration. An arbitration clause submitting future disputes to arbitration may take the form of a reference, in the main agreement, to a separate document containing an arbitration agreement.

Where the arbitration is deemed to be international, the requirement of written form is, by virtue of Article 1495 NCPC, not compulsory. An arbitration agreement would therefore be valid even if it were not made in writing. A valid arbitration agreement may, for instance, result from the conduct of the parties in submitting their dispute to arbitral proceedings.

It must be noted that the provision on enforcement of international awards requires, as a matter of proof of the existence and validity of an award, that the party seeking enforcement submits the original award, “together with the arbitration agreement” (Article 1499 NCPC), thereby assuming the existence of some tangible form of agreement. However, it may be considered that, in the light of Article VII of the 1958 New York Convention, the existence of an arbitration agreement may be established by any means admitted by French law.

Severability
Article 1446 NCPC provides in relation to domestic arbitration that nullity of the arbitration clause shall not affect the validity of the main agreement. Recent case law recognised expressly the complete severability of the arbitration clause from the main agreement in domestic arbitration. Therefore, the nullity of the main agreement has no effect on the validity of the arbitration clause. That said, the assignment of the agreement in which the arbitration clause is situated leads also to the assignment of such clause.

With regard to international arbitration, French case law has long supported the view that the arbitration clause is fully severable from the main agreement, regardless of the applicable law. The arbitral tribunal’s jurisdiction therefore cannot be defeated by reason of the invalidity of the main contract. In a case dated 11 July 2006, No. 04 14 950, the French Cour de Cassation assessed that: “Neither the nullity nor the non-existence of the Agreement providing an arbitration clause affect such clause.”

The French Cour de Cassation has recently held that severability of the arbitration clause allows its assignment notwithstanding the possible invalidity of the assignment of the main agreement.

The constitution of the arbitral tribunal
Under the law applicable to domestic arbitration:

• the arbitration agreement (clause compromissoire or compromis) must either designate the arbitrator or arbitrators or determine the manner in which they are to be designated (including ad hoc mechanisms or reference to arbitration rules) (Article 1443 NCPC);
• the arbitral tribunal must consist of one arbitrator or of an odd number of arbitrators (Article 1453 NCPC); and
• only a natural person in full possession of his civil rights may serve as an arbitrator (Article 1451 NCPC).

This provision overrules previous case law allowing the appointment of a legal entity to act as arbitrator.

These requirements do not apply to international arbitration proceedings unless otherwise agreed by the parties. In international arbitration:

• arbitration clauses are therefore valid even if they do not contain a procedure for the appointment of the tribunal; the President of the “Tribunal de Grande Instance” of Paris has jurisdiction to resolve any difficulties which may arise in such case in constituting the arbitral tribunal (see further below); and
• the parties are free to agree on the number of arbitrators and may appoint legal entities to act as arbitrator.

Foreign nationals may serve as arbitrators in both domestic and international arbitration.

Court assistance in relation to the constitution of the arbitral tribunal
If a party to domestic arbitration proceedings fails to cooperate in the appointment process, the appointment may be made by a competent court (Article 1444 NCPC). The court may also be called upon to appoint an additional arbitrator when the parties have appointed an even number of arbitrators (Article 1454 NCPC) and to decide on challenges to arbitrators (Article 1463 NCPC).

The competent court is that designated in the arbitration agreement, or, failing any such designation, the court at the place of arbitration as determined by the agreement, or, if the agreement is silent, the court at the respondent’s place of business or residence. If the respondent does not have a place of business or residence in France, the court at the petitioner’s place of business or residence will be competent (Article 1457 NCPC).

If any difficulty arises in the constitution of an arbitral tribunal in international arbitration proceedings, either party may, in the absence of an agreement to the contrary, apply to the President of the Tribunal de Grande Instance of Paris to resolve any such difficulty, provided that the arbitration is taking place in France or is a foreign arbitration proceeding in relation to which the parties have agreed that French procedural law should apply (Article 1493 NCPC). In a recent case, the French Cour de Cassation (Cass 1st civ. 1 February 2005) has interpreted the requirement of a link with France in a very wide manner. The French Cour de Cassation has held that, where the claimant could not apply to another foreign court to obtain the judicial appointment of an arbitrator on behalf of the defendant, the Tribunal de Grande Instance of Paris has jurisdiction to make this judicial appointment. The sole link with France was the attribution of the power to appoint arbitrators to the President of the International Chamber of Commerce (the headquarters of which are in Paris).

The President of the Tribunal de Grande Instance of Paris gives his ruling in urgent proceedings (“référé”) by non-appealable order. This procedure may also be used to resolve any other type of obstacle in relation to the composition of the arbitral tribunal, including challenges of arbitrators and problems occurring in the course of the arbitration. However, in the case of institutional arbitration proceedings, it is generally considered that this procedure may only be used where the applicable institutional arbitration rules are silent on the point in issue.

The challenge of arbitrators
In domestic arbitration proceedings, an arbitrator may be challenged on the same grounds as a court judge, which include: an interest in the outcome of the dispute, a financial or family relationship to any of the parties or prior knowledge of the dispute. At the appointment phase, the arbitrator has a duty to disclose to the parties any potential cause for challenge (Article 1452 NCPC). If such a cause exists, the arbitrator concerned may accept his appointment only with the agreement of the parties. Thereafter, an arbitrator may only be challenged on grounds arising after his appointment (Article 1463 NCPC).

It has recently been held that the fact that the arbitrator has already been chosen by the same party as a party-appointed arbitrator in other arbitration proceedings should be considered as such cause and be disclosed accordingly.

There are no separate provisions on the challenge of arbitrators in international arbitration proceedings but the procedure for recourse to the President of the Tribunal de Grande Instance de Paris may also be used in international arbitration proceedings.

Competence to rule on its own jurisdiction
The provisions governing domestic arbitration explicitly enact the principle whereby the arbitral tribunal initially determines the validity of its appointment and the extent of its jurisdiction (Article 1466 NCPC).

Pursuant to long-established case law, this principle also applies to international arbitration. The French courts only have jurisdiction on the matter at the stage of reviewing the award.

Procedural powers of the tribunal
Under the general rules applicable to domestic arbitration:

• the arbitral tribunal may order a party to produce evidence in his possession (Article 1460 NCPC). However, the tribunal may not apply sanctions in the event that the party concerned does not comply with this order. In international arbitration proceedings this provision only applies if the parties have not agreed otherwise; and
• unless the parties agree otherwise, the arbitral tribunal has the power to rule on claims regarding the verification of handwriting or forgery of documents (Article 1467 NCPC).

On the basis of certain general procedural principles applicable to court proceedings, which also apply to domestic arbitration in accordance with Article 1460 NCPC (see below for further details), the arbitral tribunal has power to decide on the appointment of experts, the hearing of witnesses, the requirement of oral hearings, discovery and other measures of obtaining evidence.

Procedural law and general procedural principles
Title II of Section IV of the NCPC sets out guidelines on the conduct of arbitral proceedings in domestic arbitration. The arbitral tribunal may determine the applicable procedural rules, unless the parties have agreed otherwise (Article 1460 NCPC). The arbitrators are not bound to follow the rules governing normal court proceedings. They must, however, abide by certain basic procedural principles applicable to court litigation, reflected in Articles 4–11.1 NCPC and Articles 13–21 NCPC, which are specifically referred to in Article 1460 NCPC.

According to these principles, the arbitrators:

• are bound by the subject matter of the dispute as defined by the respective claims of the parties and cannot rule beyond the points at issue;
• cannot base their decision on facts which have not been introduced into the proceedings. They may, however, take into consideration facts which are not expressly relied upon by the parties if they are relevant to the case;
• must act fairly and impartially as between the parties, giving each of them an opportunity of being heard and providing the same information to all parties;
• have some inquisitorial powers to conduct the case, e.g. by requesting submission of evidence, holding oral hearings or appointing experts; and
• have the right and duty to seek a conciliation between the parties.

Parties to an international arbitration agreement may set out the procedure to be followed in the arbitral proceeding in their agreement, either directly or by reference to a procedural law or to existing arbitration rules. In the absence of a designation of the applicable procedural rules by the parties, the arbitral tribunal establishes or determines the procedural rules (Article 1494 NCPC).

Where French procedural law applies, the parties, or, in the absence of any agreement between the parties, the arbitral tribunal, may choose which of the rules set out in Titles I–IV of Section IV of the NCPC they wish to apply. As in the case of domestic arbitration, they must follow the basic procedural principles applicable in court proceedings mentioned above.

Commencement of arbitration
The dispute is submitted to the arbitral tribunal either jointly by the parties, or by the most diligent party (Article 1445 NCPC).

The proceedings start when the arbitrators have accepted their assignment (Article 1452 NCPC). If the arbitration agreement does not determine a time limit, the authority of the arbitral tribunal shall last six months from the day on which the last arbitrator accepts his assignment, unless extended by the parties (tacit approval, by the parties, of such extension is considered as valid by case law), or by the court upon the application of one of the parties or the arbitral tribunal (Article 1456 NCPC).

The above provisions will also apply in international arbitration proceedings if they are subject to French procedural law, and provided that the parties have not agreed otherwise.

Place and language of arbitration
The NCPC does not contain any provision on the determination of the seat and language of arbitration proceedings. Like other procedural matters, they shall be determined by the parties, for example, by reference to a set of arbitration rules, or, in the absence of agreement between the parties, by the arbitral tribunal.

Nothing prevents the arbitrators from holding any part of the proceedings in a place other than at the seat of the arbitration if this is more appropriate.

Oral hearings and written proceedings
The format of and timetable for written submissions or hearings is to be determined by the arbitral tribunal in such a manner as to enable each party to present its case and to deal with that of its opponent.

In French arbitration proceedings the parties will frequently submit written memoranda (“mémoires”) describing their views on the facts and the legal basis for their demands, supported by extensive documentation.

They will also attend hearings during which the arbitrators will ask for any clarifications which may be required. If necessary, the tribunal will ask for additional written submissions.

Evidence
Article 1461 NCPC contains the principle pursuant to which the arbitrators have to make orders and take procedural measures jointly (unless the arbitration agreement authorises the tribunal to delegate these tasks to one of them).

In accordance with this principle, measures to obtain evidence will be determined by the tribunal, subject to any agreement between the parties. Evidence may be obtained through disclosure of documents, witness statements, expert reports or discovery, in the same way as in normal court proceedings. However, the tribunal is not required to follow all the rules applicable to court proceedings.

The main procedural issue dealt with in case law on arbitration relates to the requirement that the parties should have equal access to and knowledge of information disclosed in the proceedings, and the opportunity to discuss it, in accordance with due process principles.

The extent to which documents and information must be disclosed to the parties is generally wider in international arbitration subject to French procedural law than in domestic arbitration.

Stay of arbitration proceedings
In relation to domestic arbitration, the NCPC makes direct reference to the provisions pursuant to which court proceedings may be interrupted (Article 1465 NCPC): this includes automatic suspensions in the event of the death or bankruptcy of a party. Proceedings may not be interrupted once a hearing has commenced and, once interrupted, may be resumed voluntarily by the parties or pursuant to court order.

In cases involving a criminal plea of forgery, the time limit for the arbitration is suspended until a decision on the forgery issue is reached (Article 1467 NCPC). The proceedings do not need to be suspended if the arbitrator concludes that a decision on the merits can be reached without relying on the allegedly forged evidence.

Choice of law
In domestic arbitration, arbitrators are required to base their decision on “rules of law”, unless authorised by the parties to decide ex aequo et bono (Article 1474 NCPC).

In international arbitration, the parties are free to choose the rules of law applicable to the dispute. In the absence of such a choice by the parties, the arbitrators shall apply the rules of law which they consider appropriate (Article 1496 NCPC). The use of the wording “rules of law” rather than “law” is intended to give the parties and the arbitrators greater flexibility in not restricting them to the application of the law of any specific country. Thus, in some instances, arbitrators have applied rules common to several systems of law.

In addition, the tribunal is obliged in all cases to take general legal principles and trade customs into consideration. This provision gives the arbitrators the right to apply transnational legal principles, including the lex mercatoria, and codifies French case law on international arbitration. Arbitrators do not need to be authorised by the parties to make reference to such rules.

While the parties may authorise the tribunal to decide the dispute on the basis of the lex mercatoria or ex aequo et bono, this is very rarely agreed upon in practice, given the uncertainties as to the scope of the lex mercatoria and the principles to be applied in making a decision ex aequo et bono.

Arbitrators in both international and domestic arbitration proceedings may not act as amiable compositeur, unless expressly empowered by the parties to do so (Articles 1474 and 1497 NCPC). When acting as amiable compositeur, the arbitrator is seeking a fair resolution of the dispute without being bound by any specific system or general principles of law alone. In practice, arbitrators acting as amiables compositeurs generally refer to the common practice used within the trade or profession concerned, the restitution of the economic balance of the contract, or to equity, in resolving the dispute. This method of solving disputes is rarely recommended due to its inherent uncertainties.

Where application of the legal principles chosen by the arbitral tribunal leads to non-compliance with due process principles, or, if French procedural law is applicable, to a lack of reasons for the award, the parties may have the right to challenge the award.

Form and content of the award
Pursuant to Articles 1471 and 1472 NCPC, a domestic arbitration award must:

• be in writing and contain the names of the arbitrators as well as the date on which it was rendered;
• state the names and addresses of the parties, and summarise their arguments and submissions; and
• include the names of any attorneys or party representatives.

The award must be made by a majority of votes and signed by all the arbitrators. If, however, a minority refuses to sign, this fact may be recorded in the award, and the award will have the same effect as if it had been signed by all the arbitrators (Articles 1470 and 1473 NCPC). The award must also be supported by reasons (Article 1471 NCPC).

An award is null and void if it is not reasoned, not signed or does not mention the date on which it was made or the names of the arbitrators.

Although these requirements are not compulsory for international arbitration awards, details such as the names of the parties, will in practice be necessary to enforce the award. In international arbitration, parties may then freely decide whether the award should be supported by reasons. The choice of the parties to have the award supported by reasons may result either from an express provision to this effect or from reference to a procedural law or to any arbitration rule that imposes an obligation to give reasons for the award, such as Article 32.3 of the UNCITRAL Rules.

Where the arbitration clause or the rules referred to are silent on this issue, the prevailing opinion in case law is similar to the principle set forth in the 1961 Geneva Convention as well as the UNCITRAL rules, i.e. parties are presumed to have agreed on the fact that the award must be reasoned unless they have expressly stated the contrary.

In the absence of a clear agreement between the parties excluding the need for reasons, an award lacking reasons might be set aside due to incompatibility with the mission conferred upon the arbitrators, pursuant to Articles 1502–1503 of the NCPC (see below).

Correction and interpretation of the award
French arbitration law recognises the arbitrators’ authority to rectify errors and to complete material omissions in the award.

The arbitrators may interpret their award at the request of either party, and may render an interpretative award to this effect. Interpretation may be needed when there is disagreement between the parties or uncertainty as to the meaning of the award, whereas a simple confusion in relation to the reasons for the award does not give rise to a right for a party to request that the tribunal interpret the award.

These powers of the tribunal, based on Article 1475 NCPC, are not applicable in the case of international arbitration proceedings unless the agreement between the parties so provides.

Costs
Although the arbitrators have the right to determine their fees, these amounts will often result from arbitration rules. The costs of the arbitration also include the fees and expenses of any arbitral institution involved in the proceedings, of outside advisers or experts appointed by the tribunal, and the legal or other costs of the parties. The apportionment of these costs between the parties forms part of the award and will have to be supported by reasons if the procedural rules applicable to the arbitration require the award to be reasoned.

Interim and final award
Like other laws, including the UNICTRAL model law, French law does not give a definition of an award. According to case law, a final award is a decision which puts an end to the dispute in disposing of the merits of the case or the tribunal’s jurisdiction, or which deals with a procedural issue, provided that, at the same time, this decision puts an end to the proceedings.

Although not expressly stated in the NCPC, preparatory and interim awards (e.g. on the tribunal’s jurisdiction) are recognised by case law. These awards may not be challenged until the final award is rendered.

A final award is final and binding on the parties as soon as it is rendered; it terminates the arbitral tribunal’s mandate (Article 1476 NCPC), except with respect to the correction, interpretation, or completion of the award, where necessary, as mentioned above.

Stay of court proceedings
The courts must, according to Article 1458 NCPC:

• decline jurisdiction if court proceedings are brought in respect of a matter which has been referred to arbitration; and
• also decline jurisdiction if the arbitral tribunal has not yet been seized of the matter unless it is satisfied that the arbitration agreement is manifestly null and void. It must be noted that the French Cour de Cassation decided, in a case involving international arbitration, that courts could assert jurisdiction not only where the arbitration agreement was null and void, but also where the arbitration clause was obviously not applicable to the dispute (e.g. if the clause was included in a contract between different parties).

In both cases the court may rule that it lacks jurisdiction only upon application by a party but not on its own initiative. The court’s decision on jurisdiction may be appealed within 15 days under a special procedure designed to avoid costs and delay (“contredit”).

Interim protective measures
Provisional and protective measures in support of arbitration proceedings may be ordered by French courts, rulings in urgent proceedings (“référés”) by non-appealable orders.

The courts’ powers derive from the general rules of civil procedure, which case law has held to be compatible with the existence of an arbitration agreement. French courts have upheld the exercise of these interlocutory emergency powers, which permits the parties to apply to the competent judicial authorities for interim or conservatory measures.

Under this procedure, court orders are made by the President of the Tribunal de Grande Instance or the Tribunal de Commerce, depending on whether the matter has a “commercial” character under French law.

The jurisdiction exercised by French judges sitting en référé extends only to matters which do not affect the merits of the dispute. This procedure may also be used by the arbitral tribunal to enforce interim measures which it has no power to order, such as:

• conservatory attachment (“saisie-conservatoire”) of assets located in France, including debts owed to a party by a French debtor;
• interlocutory orders for payment of a provisional amount determined in accordance with an interim arbitration award. However, according to the case law of the French Cour de Cassation, an order for the interlocutory payment of amounts not seriously in dispute, which is available in ordinary court litigation, is not a simple or protective measure, and should therefore not be granted when the merits of the case are to be determined by arbitration, unless the arbitrators so decide;
• appointment of an expert in cases of urgency when the tribunal had no time to make the decision; or
• compelling the production of documents by a party based on a ruling by the tribunal.

International arbitration
International arbitration awards cannot be appealed. Articles 1504 and 1502 NCPC set out the limited grounds upon which international arbitral awards rendered in France may be challenged through a “recours en annulation”. The objective of this right of review is to allow the French judge to ensure observance of certain minimum standards for international enforceability of an award without applying additional criteria that may be appropriate only to domestic arbitration. These grounds are as follows:

• absence of a valid arbitration agreement;
• irregularities in the constitution of the arbitral tribunal or the appointment of the sole arbitrator;
• excess of jurisdiction by the tribunal; or
• failure to comply with requirements of due process or with international public policy (“ordre public international”).

The 1981 Decree confirmed French case law which had already established that international arbitral awards could not be challenged for failure to respect such domestic criteria as the legal time limit for rendering an award, or the need to hold meetings of the arbitrators.

Requirements such as the rendering of the award on the basis of a reasoned opinion, which are not applicable to an international award under the 1981 Decree, and which would not be required under the international minimum standards set by the 1958 New York Convention, may not serve as grounds for a recours en annulation.

Under the 1981 Decree, an international award rendered outside of France may not be challenged in France unless its judicial recognition (normally obtained by way of exequatur) has been first granted by a French court. A decision of exequatur may be appealed within 30 days from the date on which the appealing party was notified of the decision.

However, an award rendered in France, although classified as international, may be challenged by means of a motion to the appropriate Court of Appeal to set the award aside (recours en annulation) even though no exequatur has been sought. If exequatur has in fact been granted, the action to challenge the award is deemed to encompass an appeal of the exequatur order.

Domestic arbitration
If the parties have not waived the right to appeal, a domestic award may be appealed to the Court of Appeal in whose jurisdiction the award was made. Unless the parties expressly agree otherwise, a provision that the arbitrators shall decide as amiables compositeurs excludes the right to appeal (Article 1482 NCPC).

In the absence of any right to appeal, the award may nevertheless be challenged through a recours en annulation on the following grounds:

• absence of a valid arbitration agreement;
• irregularities in the constitution of the arbitral tribunal or the appointment of the sole arbitrator;
• excess of jurisdiction by the tribunal;
• failure to comply with requirements of due process or public policy; or
• formal defects in the award (Article 1484 NCPC).

The remedy of recours en revision (motion for revision) is available against a domestic arbitral award only in the limited cases of fraud or withholding of evidence (Article 1491 NCPC).

France has ratified both the 1958 New York Convention and the 1961 Geneva Convention.

Domestic awards
In order to obtain leave for enforcement (exequatur), copies of both the award and the arbitration agreement must be deposited with the competent court (Article 1477 NCPC). The court must give reasons for a refusal to grant the enforcement order (Article 1478 NCPC). A decision refusing enforcement may be appealed within one month of notification (Article 1489 NCPC). A decision granting exequatur is not open to appeal but may be attacked by an application to re-open the case or to set aside the award.

Foreign and international awards
Foreign and international awards are recognised in France if their existence can be established through production of the award and of the arbitration agreement, and if its enforcement would not be clearly contrary to international public policy (Article 1498 NCPC). An order granting exequatur is obtained in the same manner as for domestic awards (Article 1500 NCPC).

A decision granting recognition or enforcement of an international award may be appealed on the following limited grounds (Article 1502 NCPC):

• absence of a valid arbitration agreement;
• irregularities in the constitution of the arbitral tribunal or the appointment of the sole arbitrator;
• excess of jurisdiction by the tribunal; or
• failure to comply with requirements of due process or international public policy.

A decision refusing recognition and enforcement may be appealed within one month (Articles 1501 and 1503 NCPC).

The French arbitration law applicable to international arbitration, as stated in the 1981 Decree, implements a liberal regime for arbitration, under which the parties are granted extensive freedom to determine the applicable arbitral procedure either directly, or by reference to existing arbitration rules. In addition, the powers of the courts to interfere in arbitral proceedings or to review arbitral awards are strictly limited.

CMS Bureau Francis Lefebvre
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Jean de la Hosseraye
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Jean-Jacques Lecat
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