FRANCE Law and Practice Contributed by: Kyum Lee, Florian Dessault, Hannah Cobbett and Claire Gonzalez, BDGS Associés
While the draft Code does not introduce a substantive overhaul, it aims to enhance accessibility, coherence and legal certainty. Key proposed changes include the codification of recent case law, closer alignment of the rules governing domestic and international arbi - tration, and a more user-friendly structure designed to assist practitioners and promote efficiency. The project also contemplates the formal recognition of certain principles established by case law, such as the autonomy of the arbitration agreement and the “competence-competence” principle. While the Code remains in draft form and is currently subject to pub - lic consultation, its eventual adoption would mark a notable development in the promotion of France as a leading seat of arbitration. There are no specific legal requirements for a valid arbitration agreement to be enforceable under French law. In domestic arbitration, an arbitration agreement must be in writing to be valid (Article 1443 of the French Civil Procedure Code). However, this article is not applicable to international arbitration. 3.2 Arbitrability Under French law, the scope of matters that can be referred to arbitration has steadily expanded over the last 30 years. As a result of this evolution, it can be reasonably considered that any matter relating to eco - nomic interests can prime facie be referred to arbitra - tion. However, certain subjects remain “non-arbitrable”. Article 2060 of the French Civil Code provides that arbitration is not possible in matters relating to per - sonal status and capacity, divorce and legal separa - tion, disputes concerning public bodies and institu - tions and, more generally, all matters relating to public order. 3. The Arbitration Agreement 3.1 Enforceability Nevertheless, the matters relating to public order that are not arbitrable are limited. They mainly con - cern criminal law in general or tax-related matters. For example, disputes between the tax administra - tion and a taxpayer concerning the determination
of tax liability cannot be submitted to arbitration. In fact, many matters of public policy are “arbitrable” (transport law, intellectual property law, bankruptcy law, etc). An arbitral tribunal may hear disputes con - cerning infringements of competition rules (although it may not impose fines). An arbitration clause may be validly included in a company’s articles of association. The courts will review whether the arbitral tribunal has Arbitration agreements are generally enforced by French courts. With respect to international arbi - tration, French courts have held that an arbitration clause is independent of the main contract. Subject to mandatory provisions of French law or interna - tional public policy, the validity and enforceability of an arbitration clause is assessed without reference to any national law ( Cour de cassation , First Civil Cham- ber, 20 December 1993, Dalico). The rules of conflict of laws do not apply. Consequently, with respect to international arbitration, arbitration agreements are enforceable in France provided that the parties have validly consented and that the agreements comply with mandatory international rules. 3.4 Validity French law recognises the independence of arbitra - tion agreements with respect to both domestic and international arbitration (Article 1447 of the French Civil Procedure Code for domestic arbitration, which applies to international arbitration unless otherwise agreed by the parties). Consequently, an arbitration clause is considered valid even if the rest of the con - tract containing it is invalid. correctly applied public policy issues. 3.3 National Courts’ Approach It should be noted that, from a French law point of view, international arbitration agreements are not gov - erned by the law of the contract in which they are contained.
4. The Arbitral Tribunal 4.1 Limits on Selection
In international arbitration, the only limit on the par - ties’ autonomy to select arbitrators is respect for the
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