FRANCE Law and Practice Contributed by: Kyum Lee, Florian Dessault, Hannah Cobbett and Claire Gonzalez, BDGS Associés
are directly involved in the performance of the con - tract containing the arbitration agreement and the dis - putes that may arise from it ( Cour de cassation , First Civil Chamber, 27 March 2007, No 04-20.842, ABS). Entities belonging to the same group may avail them - selves of an arbitration agreement if they have partici - pated in the negotiation, conclusion, performance or termination of the contract containing the arbitration agreement (Paris Court of Appeal, 21 October 1983, Dow Chemicals). It should be noted that, in general, an international arbitration agreement may be automatically trans - ferred to a third party (without its express consent) as a result of a transfer of rights or contracts. The inter - national arbitration agreement is binding on any party asserting the rights of one of its contracting parties ( Cour de cassation , First Civil Chamber, 8 February 2000, No 95-14.330). Unless otherwise agreed, the arbitral tribunal may order any protective or provisional measure it deems appropriate (Article 1468 of the French Civil Procedure Code). The arbitral tribunal may order several types of interim remedies, including to maintain or restore the status quo, preserve assets or evidence, or facilitate the future execution of the award. However, French courts have exclusive jurisdiction to order provisional seizures and judicial mortgages. Furthermore, the arbitral tribunal cannot order interim measures against third parties given the relative effect of the arbitration agreement between parties. To ensure the efficiency of its decision, the arbitral tri - bunal may set a penalty triggered by non-compliance with interim measures. However, arbitral tribunals do not have coercive powers. Thus, the parties must seek enforcement of interim measures before the national courts (see 6.2 Role of Courts ). 6.2 Role of Courts Before the constitution of the arbitral tribunal, the par - ties may apply to the French courts for interim meas - 6. Preliminary and Interim Relief 6.1 Types of Relief
ures, with no such application being deemed to be a waiver of the arbitration agreement (Article 1449 of the French Civil Procedure Code). The president of the Judicial Court or the president of the Commercial Court – ruling in summary proceedings – may order the following. • Investigative measures aimed at obtaining evi - dence (including on an ex parte basis), provided that the requesting party meets certain conditions including proportionality of the measure and the existence of a legitimate motive (Article 145 of the French Civil Procedure Code). • In urgent cases: (a) interim measures that do not raise any serious challenges or that the dispute justifies (Articles 834 and 872 of the French Civil Procedure Code); (b) protective measures to avoid imminent dam - age or stop a manifestly illegal nuisance (Arti - cles 835 and 873 of the French Civil Procedure Code); and (c) in certain cases, an interim payment or the performance of an obligation (Articles 835 and 873 of the French Civil Procedure Code). Interim measures ordered by French courts are imme - diately enforceable, and appeal against these deci - sions does not have suspensive effects. These interim measures are available if French courts have territo - rial jurisdiction, regardless of whether the arbitration agreement provides for a seat in France or abroad. Once constituted, the arbitral tribunal has in principle exclusive jurisdiction to order interim measures (Arti - cle 1468 of the French Civil Procedure Code; see 6.1 Types of Relief ). Yet, the parties may seek the courts’ assistance regarding interim measures that cannot be ordered by the arbitral tribunal, or the enforcement of interim measures ordered by the arbitral tribunal. Even when the arbitral tribunal is constituted, French courts have exclusive jurisdiction to order provisional seizures and judicial mortgages and, upon authori - sation of the arbitral tribunal, to order a third party to produce identified documents (Article 1469 of the French Civil Procedure Code).
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