(Decree no. 2011-48 of 13 January2011)
The French law on domestic and international arbitration has been overhauled by a decree issued on 13 January 2011 and which will come into force on May 1st. The previous provisions, which were the result of decrees dating from 1980 and 1981 and which were codified in articles 1442 and following of the Civil Procedure Code, needed to be modernised in order to maintain the attractiveness of Paris as one of the world's arbitration capitals.
The clear objective of the reform is to facilitate and accelerate both domestic and international arbitration procedures mainly by (i) strengthening the role of the support judge, (ii) accelerating the process whereby sentences are enforced, be it only provisionally, and (iii) simplifying the appeal processes.
The reform furthermore codifies the jurisprudence, which has been abundant and fundamental since 1981, thereby increasing the accessibility of domestic and international arbitration to French law.
The new law maintains the dualism of domestic and international arbitration and refers to the provisions of domestic law for international cases.
In internal matters, the new law relaxes the requirements for arbitration, in particular by validating the use of arbitration clauses by reference (art. 1443), as well as the requirements in terms of the exequatur order, specifying that henceforth the exequatur may be entered on a copy of the sentence if the original is not available (art. 1487 and 1488).
In addition, the decree reaffirms the authority of the arbitral tribunal by underscoring the guiding principles of the arbitration procedure (speed, fairness, confidentiality), and giving it the right, under pain of penalty, to order interim or protective measures (art. 1468), but not seizures for security or judicial collateral, which are processes that are within the exclusive jurisdiction of the courts.
The decree also simplifies the rules relating to the disqualification, incapacity and resignation of arbitrators (which events no longer lead to a termination of the proceedings, and are now only cause for suspending proceedings until a new arbitrator is appointed - art. 1473).
Finally, the decree improves the remedy system, laying down the principle that only an action for annulment is allowed, except for those parties that have expressly stipulated otherwise (according to the previous regulations, an appeal was the automatic remedy - art. 1489); providing that retrials will now be held before the arbitral tribunal and not before the Court of Appeal (art. 1502 para. 2); by providing that the period for appeal against the sentence begins running as from notification, without having to obtain a prior enforcement order (art. 1494).
In international matters, the main provisions of the previous text have been included (the definition of international arbitration, procedures for appointing arbitrators, establishment of the procedural rules and rules of law applicable to the merits). The innovations of the new decree are aimed primarily at smoothing out the process by ensuring, in particularly difficult cases, that a support judge is available.
Two new areas of jurisdiction for the support judge have been added (the support judge is henceforth, unless otherwise stipulated, the presiding judge of the Paris Tribunal de Grande Instance), namely when parties have granted jurisdiction to the French courts to hear disputes relative to the arbitration procedure, and when one of the parties is exposed to the risk of a miscarriage of justice (art. 1505). This addition reinforces the universal vocation of the French law of international arbitration.
In addition, for international matters, the principle of the majority decision for deliberations is waived. If there is no majority, the presiding judge may now rule alone. This provision is useful in international cases, because arbitrators do not necessarily share the same view of the law (art. 1513).
It should also be noted that henceforth, as with domestic law, actions for annulment have to be filed within one month of notification of the sentence (and no longer as from the notification of the sentence declared enforceable by an exequatur, which often took some time - art. 1519 para. 2).
Finally, appeals against sentences no longer have the effect of suspending enforcement of the sentence during the pendency of the appeal (art. 1526). These changes are intended to accelerate the process and avoid dilatory appeals. However, the decree does provide for the possibility to seek exemption from the above rules if enforcement is liable to seriously injure the rights of the party concerned.