FRANCE Law and Practice Contributed by: Kyum Lee, Florian Dessault, Hannah Cobbett and Claire Gonzalez, BDGS Associés
3.2 Arbitrability Under French law, the scope of matters that can be referred to arbitration has steadily expanded over the last 30 years. French law takes a broad approach to arbitrability. Disputes concerning rights of which the parties may freely dispose are generally arbitrable, subject to lim - ited rules of non-arbitrability and subsequent review for compliance with international public policy (Arti - cles 2059 and 2060 of the French Civil Code). Article 2060 excludes disputes relating to personal status and capacity, divorce and legal separation, disputes involving public authorities and public institutions and, more generally, matters concerning public policy, subject to qualifications recognised by legislation and case law. The reference to public policy does not mean that eve - ry dispute involving mandatory rules is non-arbitrable. In many such fields, an arbitral tribunal may deter - mine the parties’ private-law rights, while the award remains subject to judicial review for compliance with international public policy. Core examples of non-arbitrable matters include crim - inal prosecution and disputes between the tax author - ities and a taxpayer concerning the assessment of tax liability. Disputes involving competition, intellectual property, transport or insolvency rules may neverthe - less be arbitrable, although an arbitral tribunal cannot exercise powers reserved to public authorities, such as imposing public fines. At the recognition, enforcement or set-aside stage, French courts may review whether the result of the award complies with international public policy. 3.3 National Courts’ Approach Arbitration agreements are generally upheld by French courts. In international arbitration, French courts assess the existence, validity and scope of the arbi - tration agreement by reference to the parties’ com - mon intention, subject to mandatory rules of French law and international public policy, without applying a national conflict-of-law rule to determine a govern - ing law for the arbitration agreement ( Cour de cas- sation , First Civil Chamber, 20 December 1993, No
91-16.828, Dalico; Cour de cassation , First Civil Cham- ber, 28 September 2022, No 20-20.260). 3.4 Validity French law recognises the independence of arbitra - tion agreements in both domestic and international arbitration (Article 1447 of the French Civil Proce - dure Code for domestic arbitration, which applies to international arbitration unless otherwise agreed by the parties). Consequently, an arbitration clause may remain valid even if the contract in which it is con - tained is invalid. Under the French substantive-law approach to international arbitration agreements, the clause is not necessarily governed by the law appli - cable to the main contract. In principle, where an arbitration clause is imprecise as to the parties’ intention, French courts may apply the doctrine of effet utile (“useful effect”) to interpret the clause in a manner that gives it effect. However, this doctrine has its limits. In a notable illustration of these principles, the Par - is Court of Appeal set aside a final award rendered against Malaysia in the long-running Sulu heirs dis - pute, holding that an arbitration clause designating the British Consul General in Brunei as the appointing authority had become inapplicable following the dis - appearance of that diplomatic function, and that this defect in the arbitration agreement could not be cured by reference to the effet utile doctrine (Paris Court of Appeal, 9 December 2025, No 22/04007). In domestic arbitration, Article 1450 of the French Civil Procedure Code provides that only a natural person with full capacity to exercise their rights may act as an arbitrator. In international arbitration, Article 1450 does not apply. Party autonomy is nevertheless constrained by the principle of equality in the constitution of the arbitral tribunal and by the requirements of independence and impartiality ( Cour de cassation , First Civil Chamber, 7 January 1992, No 89-18.708; Paris Court of Appeal, 4. The Arbitral Tribunal 4.1 Limits on Selection
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