FRANCE Law and Practice Contributed by: Kyum Lee, Florian Dessault, Hannah Cobbett and Claire Gonzalez, BDGS Associés
principle of equality of the parties in the constitution of the arbitral tribunal, which implies that each party has an equal opportunity to participate in the constitution of the arbitral tribunal ( Cour de cassation , First Civil Chamber, 7 January 1992, No 89-18.708; Paris Court of Appeal, 3 July 2012, No 11/01974; Paris Court of Appeal, 14 December 2021, No 19/12417). In domestic arbitration, Article 1450 of the French Civil Procedure Code provides a limit to the parties’ autonomy in the selection of arbitrators by stating that only a natural person with full capacity to exercise their rights may act as an arbitrator. For international arbitration, Article 1508 of the French Civil Procedure Code simply provides that the arbitra - tion agreement may, either directly or by reference to arbitration rules or rules of procedure, designate the arbitrator(s) or provide for the terms and conditions of their appointment (Article 1508 of the French Civil Procedure Code). While French law does not require arbitrators to have any specific qualifications or profession, the parties may, in the arbitration agreement, require the arbitra - tor to meet certain qualifications or conditions with regard to their profession, nationality or languages. Nevertheless, it is worth noting that the exercise of certain professional activities is incompatible with the function of arbitrator. This professional incompatibility notably concerns magistrates (Article 8 of Ordinance No 58-1270 of 22 December 1958), officials, except for professors and those who have been authorised (Article 25-I and Article III of Law No 83-634 of 13 July 1983), members of parliament (Law No 2013-906 of 11 October 2013), and bailiffs (Article 20 of Decree No When the parties are unable to agree on the choice of arbitrator(s) or on the terms and conditions of their appointment(s), Article 1452 of the French Civil Proce - dure Code provides for a default procedure whereby: • where there is a sole arbitrator, if the parties do not agree on the choice of arbitrator, the arbitrator shall be appointed by the person responsible for organ - 56-222 of 29 February 1956). 4.2 Default Procedures
ising the arbitration or, failing this, by the support - ing judge; or • where there are three arbitrators, each party chooses one arbitrator, and the two arbitrators thus chosen appoint the third – if one party fails to choose an arbitrator within one month of receipt of the other party’s request to do so, or if the two arbitrators fail to agree on the choice of the third arbitrator within one month of acceptance of their appointment, the person responsible for organising the arbitration or, failing this, the supporting judge, makes the appointment. This default procedure also applies in the case of multiparty arbitrations. Article 1453 of the French Civil Procedure Code provides that when more than two parties are involved in a dispute and they are unable to agree on how the arbitral tribunal should be consti - tuted, the person responsible for organising the arbi - tration or, failing this, the supporting judge, appoints the arbitrator(s). 4.3 Court Intervention The supporting judge can intervene in the selection of arbitrators when there is a dispute related to the con - stitution of the arbitral tribunal (Articles 1452 to 1454 of the French Civil Procedure Code), the challenge or removal of arbitrators (Article 1456), or their absten - tion, resignation or impediment (Article 1457 of the French Civil Procedure Code). Thus, the supporting judge has only a subsidiary role. The jurisdiction of the supporting judge in international arbitration is limited to the following situations (Article 1505 of the French Civil Procedure Code): • the seat of arbitration is in France; • the parties have agreed that French procedural law applies to the arbitration; • the parties have expressly given jurisdiction to French courts over disputes related to the arbitra - tion proceedings; or • one of the parties is at risk of a denial of justice. Article 1505 of the French Civil Procedure Code pro - vides that, unless otherwise agreed by the parties, the supporting judge is the chairperson of the Tribunal judiciaire of Paris.
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