FRANCE Law and Practice Contributed by: Kyum Lee, Florian Dessault, Hannah Cobbett and Claire Gonzalez, BDGS Associés
3 July 2012, No 11/01974; Paris Court of Appeal, 14 December 2021, No 19/12417). Article 1508 provides that the arbitration agreement may, directly or by reference to arbitration rules or procedural rules, designate the arbitrator or arbitra - tors or provide for the terms and conditions of their appointment. While French law does not require arbitrators to have any specific qualifications or belong to any particular profession, the parties may, in the arbitration agree - ment, require the arbitrator to meet certain qualifica - tions or conditions with regard to their profession, nationality or languages. Nevertheless, it is worth noting that the exercise of certain professional activities is incompatible with the function of arbitrator. Separate statutory and ethical rules may restrict or condition the ability of serving judges, civil servants, parliamentarians or commis- saires de justice to accept an arbitral appointment. These are status-specific rules rather than general restrictions imposed by French arbitration law. 4.2 Default Procedures Where the parties are unable to agree on the choice of arbitrator(s) or on the terms and conditions of their appointment(s), Article 1452 of the French Civil Proce - dure Code provides for a default procedure whereby: • where there is a sole arbitrator, if the parties are unable to agree on the choice of arbitrator, the arbitrator shall be appointed by the person respon - sible for organising the arbitration or, failing that, by the supporting judge; or • where the arbitral tribunal is composed of three arbitrators, each party appoints one arbitrator, and the two arbitrators thus appointed appoint the third – if one party fails to appoint an arbitrator within one month of receipt of the other party’s request to do so, or if the two arbitrators fail to agree on the appointment of the third arbitrator within one month of acceptance of their appointment, the person responsible for organising the arbitration or, failing this, the supporting judge, makes the appointment.
This default procedure also applies to multiparty arbi - trations. Article 1453 of the French Civil Procedure Code provides that, where a dispute involves more than two parties and they are unable to agree on the constitution of the arbitral tribunal, the person respon - sible for organising the arbitration or, failing that, the supporting judge, appoints the arbitrator(s). 4.3 Court Intervention The supporting judge can intervene in the selection of arbitrators when there is a dispute related to the con - stitution of the arbitral tribunal (Articles 1452 to 1454 of the French Civil Procedure Code), the challenge or removal of arbitrators (Articles 1456 and 1458), or their abstention, resignation or impediment (Article 1457 of the French Civil Procedure Code). Thus, the support - ing judge has only a subsidiary role. The jurisdiction of the supporting judge in international arbitration is limited to the following situations (Article 1505 of the French Civil Procedure Code): • the seat of arbitration is in France; • the parties have agreed that French procedural law applies to the arbitration; • the parties have expressly given jurisdiction to French courts over disputes related to the arbitra - tion proceedings; or • one of the parties is at risk of a denial of justice. Article 1505 of the French Civil Procedure Code pro - vides that, unless otherwise agreed by the parties, the supporting judge is the President of the Tribunal judiciaire of Paris. The supporting judge may be seized by a party, the arbitral tribunal or one of its members. The applica - tion is lodged by writ of summons, and the judge rules under the expedited procedure on the merits (Article 1460 of the French Civil Procedure Code). The judgment is not open to appeal, except where the judge refuses to make an appointment for one of the reasons listed in Article 1455, namely because the arbitration agreement is manifestly void or manifestly inapplicable.
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