FRANCE Law and Practice Contributed by: Kyum Lee, Florian Dessault, Hannah Cobbett and Claire Gonzalez, BDGS Associés
5.2 Circumstances for Court Intervention In accordance with the principle of competence- competence, the French courts will give priority to the arbitral tribunal to decide on its jurisdiction (see 5.4 Timing of Challenge ). 5.3 Timing of Challenge The parties may not challenge the jurisdiction of the arbitral tribunal before a state court until the arbitral tribunal has issued an award on its jurisdiction. The jurisdiction of the arbitral tribunal will be reviewed at the following stages: • if the arbitral tribunal renders a partial award on its jurisdiction, this partial award may be challenged before the French courts – if the partial award confirms the jurisdiction of the arbitral tribunal, the challenge should not suspend the arbitration proceedings; or • if the arbitral tribunal renders a final award on the merits of the case and on its jurisdiction, the court will examine the question at the stage of setting aside or enforcing the award. 5.4 Standard of Judicial Review for Jurisdiction/Admissibility When French courts review the jurisdiction of the arbitral tribunal, they apply a de novo standard. The French Cour de cassation has held that the arbitrators’ decision is subject to a full legal and factual review by the court ( Cour de cassation , First Civil Chamber, 6 October 2010, No 08-20.563, Abela). 5.5 Breach of Arbitration Agreement French law recognises the principle of competence- competence in both domestic and international arbi - tration. As a result, French courts have an obligation to decline jurisdiction if a party raises the jurisdiction of an arbitral tribunal, unless the arbitration agreement appears manifestly invalid or inapplicable. 5.6 Jurisdiction Over Third Parties In principle, an arbitration agreement is binding only between the parties. However, in international arbitration, French case law has gradually recognised the extension of the binding effect of an arbitration agreement to third parties who
duty of disclosure (Article 11 of the ICC Rules of Arbi - tration and Article 18 of CMAP’s Arbitration Rules). It should be noted that the International Bar Associa - tion (IBA) Guidelines on Conflicts of Interest in Inter - national Arbitration have been revised to enhance the impartiality and independence of arbitrators. These updated Guidelines were published on 25 May 2024.
5. Jurisdiction 5.1 Challenges to Jurisdiction
Like most systems of national law, French law rec - ognises the principle of competence-competence in both domestic and international arbitration, which is deemed to have a positive and a negative effect. Positively, the principle allows the arbitral tribunal to decide on its own jurisdiction (Article 1465 of the French Civil Procedure Code, applicable to interna - tional arbitration unless otherwise agreed by the par - ties). This principle is widely recognised by the French courts. Negatively, the principle prohibits a state court, in the presence of an arbitration agreement that is prima facie applicable, from ruling on the jurisdiction of an arbitral tribunal before the latter has heard the case (Article 1448, paragraph 1 of the French Civil Proce - dure Code). This means that, unless the arbitration agreement appears manifestly invalid or inapplicable, a state court will decline jurisdiction to hear the case and will let the arbitral tribunal rule on its own juris - diction. This rule applies regardless of the seat of the arbitral tribunal. However, a state court may not declare of its own motion that it lacks jurisdiction to hear the case (Arti - cle 1448, paragraph 2 of the French Civil Procedure Code, applicable to international arbitration unless the parties agree otherwise). One of the parties must raise the jurisdiction of the arbitral tribunal. It should be noted that Brussels I bis Regulation No 1215/2012 on Jurisdiction and Enforcement of Judg - ments in Civil and Commercial Matters does not apply to arbitration.
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