FRANCE Law and Practice Contributed by: Kyum Lee, Florian Dessault, Hannah Cobbett and Claire Gonzalez, BDGS Associés
8. Evidence 8.1 Collection and Submission of Evidence French law grants parties and arbitrators broad dis - cretion in the conduct of proceedings, including the collection and submission of evidence. Article 1509 of the French Civil Procedure Code empowers the arbi - tral tribunal to define the applicable procedural rules, unless otherwise agreed between the parties. Hence, an arbitral tribunal seated in France may conduct a US-style discovery procedure, even though France is a civil law system. In practice, the parties and arbitral tribunals having their seats in France routinely refer to the IBA Rules on the Taking of Evidence in International Arbitration, which is a balanced combination of the common law and civil law systems. In general, the parties produce documents upon which they intend to rely and then request documents by using the so-called Redfern Schedule (ie, a table detailing the parties’ grounds and objections for each document requested). A party may also apply to French courts, with the authorisation of the arbitral tribunal, to compel a third party to produce identified documents (Article 1469 of the French Civil Procedure Code). When witness statements are submitted, requests for conducting a cross-examination of the witness are usually granted. Pursuant to Article 1467 of the French Civil Procedure Code, the arbitral tribunal may call upon any person to provide testimony, but wit - As noted in 8.1 Collection and Submission of Evi- dence , the arbitral tribunal is free to choose the rules of evidence, unless otherwise agreed between the parties. Irrespective of the rules of evidence chosen, the arbitral tribunal must ensure equal treatment of the parties and uphold the adversarial principle (Article 1510 of the French Civil Procedure Code). Moreover, in domestic arbitration, the fundamental principles governing French court proceedings apply (Article 1464 of the French Civil Procedure Code). As a result, the discretion of the parties and the tribunal in defining evidentiary rules is more limited. For example, nesses are not sworn in. 8.2 Rules of Evidence
each party bears the burden of proving the facts it alleges (Article 6 of the French Civil Procedure Code). 8.3 Powers of Compulsion The arbitral tribunal may order a party to produce documents and set a penalty if a party does not comply with an injunction (Article 1467 of the French Civil Procedure Code). The arbitral tribunal may also draw adverse inferences from a failure to comply with a document production order. Upon authorisation of the arbitral tribunal, parties may apply to the French courts to compel a third party to produce documents (Article 1469 of the French Civil Procedure Code). Neither the arbitral tribunal nor the French courts can compel witnesses to appear before the arbitral tribu - nal. However, the arbitral tribunal may draw adverse inferences from the non-appearance of witnesses. Subject to legal obligations and unless the parties agree otherwise, domestic arbitration proceedings are confidential (Article 1464 of the French Civil Procedure Code). Such confidentiality applies to the parties and the arbitrators. It covers the documents exchanged during the proceedings, the hearings, the award and the existence of the proceedings. Conversely, unless the parties agree otherwise, inter - national arbitration proceedings are not confidential under French law. The parties can include a confiden - tiality provision in the arbitration agreement or seek an order from the arbitral tribunal that the proceedings be confidential. 9. Confidentiality 9.1 Extent of Confidentiality
10. The Award 10.1 Legal Requirements
The arbitral award must set forth the claims and argu - ments of the parties and be reasoned (Article 1482 of the French Civil Procedure Code). However, the absence of motivation does not in itself constitute a ground for the setting aside of an award.
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