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Arbitral proceedings

Starting an arbitration proceeding
What is needed to commence arbitration?

Decree 2011-48 contains no provision on the commencement of arbitration proceedings. It only identifies the time when the tribunal can be said to be constituted (Article 1456 of the Code of Civil Procedure). Arbitration is usually commenced by the submission of an arbitration notice or request to a party or an administering institution.

Limitation periods
Are there any limitation periods for the commencement of arbitration?

There is no specific limitation period in Decree 2011-48 for the commencement of arbitration. However, the tribunal must determine whether the arbitration has been filed in accordance with either a contractual or statutory limitation period. If the law governing the merits of the case is French law, the limitation period for actions in personam and in rem is five years from the date on which the claimant knew or ought to have known of the relevant facts (Article 2224 of the Civil Code). Other limitation periods exist – for instance, 30 years for certain real estate disputes. Service of an arbitration request interrupts the limitation period.

Procedural rules
Are there any procedural rules that arbitrators must follow?

The arbitrators must follow the procedural rules agreed by the parties, either directly in the arbitration agreement or by reference. In the absence of agreement of the parties, the tribunal shall define the procedural rules to be followed in the arbitration (Article 1509 of the Code of Civil Procedure). Decree 2011-48 expressly provides that, even where specific procedural rules are adopted, “the arbitral tribunal shall ensure that the parties are treated equally and shall uphold the principle of due process” (Article 1510). In general, the tribunal must also comply with its mandate and ensure that its award is not contrary to international public policy (Article 1520 of the code). The arbitrators also have a duty of diligence and good faith (Article 1464 of the code). Other specific rules exist – for instance, Decree 2011-48 provides that witnesses appearing before the tribunal shall not be sworn in, even though the administration of oaths is common in international arbitration practice (Article 1467 of the code).

Dissenting arbitrators
Are dissenting opinions permitted under the law of your jurisdiction?

Decree 2011-48 is silent on the issue of dissenting arbitrators. For a long time, dissenting opinions were a controversial topic, because some considered that they would violate the confidentiality of the tribunal’s deliberations. However, the prevailing view today is that there is no impediment to dissenting opinions, provided that the confidentiality of the deliberations is maintained.

Judicial assistance
Can local courts intervene in proceedings?

French courts may be involved in the arbitration proceedings only in limited circumstances. A party to an arbitration can have recourse to a supporting judge, who can assist in the constitution of the tribunal and has the power to take measures in aid of arbitration, such as assisting with provisional or conservatory measures and the taking of evidence.

Pursuant to Article 1449 of the Code of Civil Procedure, prior to the constitution of the tribunal, the French courts can appoint an expert to assess facts relevant to the dispute, usually of a technical nature. Although this procedure is aimed at safeguarding a party’s right to evidence, the expert carries out investigations and issues an opinion which may cover the issues to be decided in an arbitration. 

Can the local courts assist in choosing arbitrators?

If the parties cannot agree, and in the absence of a person or institution responsible for administering the arbitration, the supporting judge will appoint the sole or presiding arbitrator and will generally resolve any dispute relating to the constitution of the tribunal, unless the arbitration agreement is manifestly void or not applicable (Articles 1452 to 1455 of the Code of Civil Procedure). 

What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration? Can the courts compel parties to arbitrate? Can they issue subpoenas to third parties?

Decree 2011-48 contains no provisions on the default of a party. Neither the arbitrators nor the French courts can compel parties to arbitrate. In practice, where a respondent fails to participate in an arbitration, the administering institution or, in its absence, the supporting judge will appoint the arbitrator in place of the defaulting party. The tribunal will then conduct the proceedings without participation from the defaulting respondent. Any award can be recognised and enforced, provided that the defaulting respondent was duly informed of the arbitration proceedings and their progress, had an opportunity to participate and elected not to do so.

The supporting judge may, upon application of a party with leave of the tribunal, summon a third party to obtain a copy of an official or private deed or the production of an item of evidence (Article 1469 of the Code of Civil Procedure). This provision is of assistance only where the supporting judge has territorial jurisdiction.

Third parties
In what instances can third parties be bound by an arbitration agreement or award?

A third party can be bound by an arbitration agreement or an award only when it has consented, explicitly or implicitly, to the extension of the arbitration clause. Depending on the specific circumstances of the case, implicit consent may be found in the third party’s involvement in the negotiations, performance or termination of the underlying agreement, the intent of a parent company of the signatory or similar. A third party may also be bound when there is an assignment or transfer of rights. 

Default language and seat
Unless agreed by the parties, what is the default language and location for arbitrations?

Decree 2011-48 is silent on the place and language of the arbitration. The determination of these issues is left to the discretion of the tribunal in the absence of an agreement between the parties.

Gathering evidence
How is evidence obtained by the tribunal?

Article 1467 of the Code of Civil Procedure, applicable to both domestic and international arbitration, provides that the tribunal shall take all necessary steps concerning evidentiary matters, including calling any person to provide testimony and enjoining a party to produce evidence (under threat of penalties if necessary). 

What kinds of evidence are acceptable?

Admissible evidence includes documentary evidence, oral and written testimony and expert evidence.

Is confidentiality ensured?

Article 1464 of the Code of Civil Procedure expressly provides for the confidentiality of domestic arbitrations (unless the parties agree otherwise). This provision does not apply to international arbitration (unless the parties agree otherwise). If the parties disagree, the courts will likely decide on the extent of the confidentiality of the proceedings. As a result, parties would be well advised to include an appropriate provision in their agreement. A breach of confidentiality does not in itself provide a basis for setting aside or annulling the final award. However, it may entitle the injured party to compensation.

Can information in arbitral proceedings be disclosed in subsequent proceedings?

As there is no express provision in Decree 2011-48 on confidentiality in international arbitration, information provided in arbitration proceedings may be disclosed in subsequent proceedings (unless the parties have agreed otherwise). French courts will likely have to address this issue in the coming years. Regardless, parties may rely on the information provided in the arbitration in court proceedings relating to the recognition or challenge of the award.

Ethical codes
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?

French law does not mandate the application to arbitration of any specific ethical code or other professional standards. Ordinarily, lawyers appearing before tribunals will be bound by the ethical and professional rules applicable to them. In any event, Article 1464 of the Code of Civil Procedure requires both the parties and the arbitrators to “act diligently and in good faith in the conduct of the proceedings.” 

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