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What are the validity requirements for an arbitration agreement?
An arbitration agreement is valid if the parties have consented to it. In domestic arbitration, it must also be in writing (Article 1443 of the Code of Civil Procedure). This is not the case in international arbitration, where the arbitration agreement is subject to no formal requirements (Article 1507 of the code). That said, it is easier to establish consent to arbitration with a written agreement.
Enforcement of agreements
How are arbitration agreements enforced in your jurisdiction? What is the attitude of the national courts towards arbitration agreements?
France is well known as a favourable venue for international arbitration. This is largely due to the deference accorded to the arbitration agreement and award, as well as the protection of arbitration proceedings from judicial interference. Thus, for example, when a dispute subject to an arbitration agreement is brought before a court, the default position is for the court to decline jurisdiction in favour of the arbitral tribunal (Article 1448 of the Code of Civil Procedure).
Can an arbitral tribunal with its seat in your jurisdiction consolidate separate arbitral proceedings under one or more contracts, and, if so, in what circumstances?
Decree 2011-48 is silent on the issue of consolidating separate arbitration proceedings. However, tribunals and courts have taken the position that a tribunal seated in France is not entitled to consolidate separate arbitration proceedings under one or more contracts, unless the parties have consented to such consolidation. That consent may be express or implied. It will be implied if it is found, for example, that there is a necessary link between the various contracts at issue. Conversely, tribunals will be less inclined to agree to consolidation if the various contracts have irreconcilable dispute resolution provisions, suggesting that the parties did not intend for consolidation to occur.
Choice of law
How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
According to Article 1511 of the Code of Civil Procedure, the substantive law of the dispute is determined in accordance with the choice of the parties. If the parties have not made a choice, the tribunal shall decide the dispute in accordance with the rules of law that it considers appropriate. There is no obligation for the tribunal to apply conflict of laws rules. In general, the tribunal will select the law that is most closely connected to the dispute. In addition to the substantive law, the tribunal is to take trade usages into account.
Are there any provisions on the separability of arbitration agreements?
Decree 2011-48 provides for the separability of arbitration agreements. Article 1447 of the Code of Civil Procedure provides that an arbitration agreement is independent of the contract in which it is contained. It follows, therefore, that the arbitration agreement is not itself affected by the invalidity of the contract in which it is contained.
Are multiparty agreements recognised?
Multiparty agreements are recognised under French arbitration law. However, Decree 2011-48 does not address issues that arise in the context of multiparty arbitration, except in relation to the constitution of the tribunal. In this respect, Article 1453 of the Code of Civil Procedure provides that if there are more than two parties to the dispute and they fail to agree on the procedure for constituting the tribunal, the person responsible for administering the arbitration or, where there is no such person, the judge acting in support of the arbitration shall appoint the arbitrator(s). This provision codifies the Court of Cassation decision in Dutco, which established the principle that the parties are to be treated equally in relation to the constitution of the tribunal.
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