The New French Arbitration Law
Arbitration News / 20 May 2011
The New French Arbitration Law ( Décret n° 2011-48 du 13 janvier 2011 portant réforme de l'arbitrage ) aimed at increasing the efficiency of arbitration in France entered into force on 1 May 2011. It is incorporated in articles 1442-1527 of the French Code of Civil Procedure ( Le Code de procedure civile ).
The new law both consolidates the case-law principles from the past 30 years and introduces new provisions inspired by other legal systems (such as confirmation of the principle of estoppel found in common law jurisdictions, inter alia). The law reforms both domestic and international arbitration law - the difference between the two has been maintained.
The main changes to domestic arbitrations are as follows: a softening of the requirements of formality regarding the arbitration agreement and the procedure of exequatur (see articles 1442-1444, 1451-1454, 1484, 1474, 1488 and 1513); affirmation of the powers of the arbitral tribunal (see articles 1458, 1464, 1466-1469, 1475, 1486, 1489,1502 and 1526); and confirmation and consolidation of the powers of the national courts in support of the arbitration, as seen in the reference made to "juge d'appui" in articles 1459 and 1505. The term "juge d'appui" (a judicial authority acting in support of arbitration) is believed to have a doctrinal origin in French case-law and it is the first time that it has been codified in a legislative text. The Decree specifies that this role is incumbent upon the President of the relevant Tribunal du Grand Instance in domestic arbitrations and President of the Tribunal du Grand Instance in Paris in international arbitrations. The judicial authority acting in support of arbitration has to be seen as the "good Samaritan" who can intervene to help the parties throughout the arbitral proceedings.
One significant change involves confirmation of the flexibility of international arbitration. While all the provisions regarding domestic arbitrations are also applicable to international arbitrations, some have been expressly excluded, as laid down in article 1506 (see articles 1443-1445, 1450-1451, 1463). More importantly, international arbitration agreements do not have to meet any particular form requirements (see article 1507) and the original of the award is no longer required with the petition for seeking exequatur; rather, it is now sufficient to present a copy which fulfils "the conditions required to establish its authenticity" (see article 1515).
The law also affirms the powers of the President of the Tribunal du Grand Instance in Paris in support of the international arbitration (see articles 1505 and 1516). It also provides clarification of the different avenues of redress (voies de recours) of arbitration awards made outside France and arbitration awards of international arbitrations taking place in France. This explains why the Decree distinguishes between awards made in France or outside France (see articles 1458-1527).
A new website was launched on 20 April to provide relevant information regarding arbitration including basic legal texts, case-law, associations, legal firms, list of arbitrators, bibliographies and debates, all in several languages (French, English, Italian, Spanish, Portuguese, German, Russian, Chinese and Arabic).
The reform has been well received. The report to the Prime Minister concerning Decree 2011-48 of 13 January 2011 states that the French Arbitration Law has preserved its distinguishing features both with regard with to its flexibility and the legal certainty that it ensures, and that Paris remains to be viewed as a truly neutral place. Given the fact that the law codifies the case-law, no radical changes are expected in the attitude of French courts. However, the same cannot be said regarding the innovations which the law brings about. The success of the new French Arbitartion Law remains to be seen.
Elina Zlatanska