FRANCE Law and Practice Contributed by: Kyum Lee, Florian Dessault, Hannah Cobbett and Claire Gonzalez, BDGS Associés
French courts’ assistance is also needed when a party does not comply with an interim measure ordered by the arbitral tribunal. However, there is a debate as to whether an interim decision qualifies as an arbi - tral award and is subject to the French law regime of awards enforcement. Emergency arbitration provisions provided for by the rules of arbitral institutions are not incompatible with French law. For example, the ICC Arbitration Rules provide the following: • an emergency arbitrator may be appointed before the constitution of the arbitral tribunal; • the emergency arbitrator’s decision is binding on the parties but cannot be enforced as an arbitral award; and • an application for emergency arbitrator proceed - ings does not prevent a party from applying to national courts for any other urgent or conservatory measures. 6.3 Security for Costs French law does not include any specific provisions concerning security for costs. However, security for costs may be ordered by arbitral tribunals or the French courts under the conditions set out in the fore - going for interim measures (see 6.1 Types of Relief and 6.2 Role of Courts ). Pursuant to Article 1509 of the French Civil Procedure Code, the parties have freedom to agree the proce - dural rules applicable to their international arbitration proceedings. This is typically done by the parties incorporating a set of institutional rules that govern the arbitration procedure into the arbitration agree - ment. In the absence of an agreement between the parties, the arbitral tribunal shall set the applicable procedural rules (Article 1509 of the French Civil Pro - cedure Code). 7.2 Procedural Steps 7. Procedure 7.1 Governing Rules French law does not provide for mandatory procedural steps. Certain fundamental principles must, however,
be observed irrespective of the procedural rules cho - sen by the parties, among which are the obligation for the arbitral tribunal to respect the adversarial principle ( principe du contradictoire ), to treat the parties equally and to conduct the proceedings in an expeditious and loyal manner (Articles 1464 and 1510 of the French Civil Procedure Code). 7.3 Powers and Duties of Arbitrators Arbitrators are required to be independent and impar - tial (see 4.5 Arbitrator Requirements ). They have a general duty to conduct the arbitration proceedings fairly, efficiently and, if possible, swiftly, and to decide on the dispute by rendering an award. French law largely grants autonomy to the parties as regards the power of the arbitrators, notably concern - ing the conduct of the arbitration proceedings. Not - withstanding, the French Civil Procedure Code sets forth key powers of arbitrators in international arbitra - tion, unless otherwise agreed by the parties, including the following: • the ability for arbitrators, according to the principle of competence-competence, to decide on their own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement (Article 1465 of the French Civil Proce - dure Code); • the ability to order the production of documents by a party (Article 1467 of the French Civil Procedure Code, see 8.2 Rules of Evidence ); and • the ability to order interim relief that the arbitral tribunal deems appropriate (Article 1468 of the French Civil Procedure Code; see 6.1 Types of Relief ). 7.4 Legal Representatives There are no particular qualifications or other require - ments for legal representatives appearing in an arbi - tration seated in France. For internal arbitration, the parties can appear in proceedings without represen - tation or with representation by the person of their choice (Articles 18, 19 and 1464 of the French Civil Procedure Code). Though there is no similar provision for international arbitration, it is admitted that the same rules apply.
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