FRANCE Law and Practice Contributed by: Kyum Lee, Florian Dessault, Hannah Cobbett and Claire Gonzalez, BDGS Associés
6. Preliminary and Interim Relief 6.1 Types of Relief
The question of admissibility (eg, breach of a multi- tier arbitration clause) is not an issue of jurisdiction but a matter of admissibility, and does not fall within the grounds for setting aside an award listed in Article 1520 of the French Civil Procedure Code (Paris Court of Appeal, 25 May 2021, No 18/27648). 5.5 Breach of Arbitration Agreement Where a party invokes an arbitration agreement before a French court, the court must give priority to the arbi - tral tribunal unless the agreement is manifestly void or manifestly inapplicable (see 5.1 Challenges to Juris- diction ). 5.6 Jurisdiction Over Third Parties In principle, an arbitration agreement is binding only on the parties to it. In international arbitration, French case law may extend an arbitration agreement to a non-signatory that was directly involved in the performance of the contract and the resulting dispute, where the objec - tive circumstances demonstrate consent to the arbi - tration clause ( Cour de cassation , First Civil Chamber, 27 March 2007, No 04-20.842, ABS). Membership of a corporate group is not sufficient by itself. In Dow Chemical , extension was accepted in light of the relevant group companies’ role in the con - clusion, performance or termination of the contractual relationship (Paris Court of Appeal, 21 October 1983, Dow Chemical ). An arbitration agreement may be transmitted with the rights or contractual position to which it relates. Under French case law, a successor asserting contractual rights may be bound by the associated arbitration agreement even without having separately expressed consent to that clause ( Cour de cassation , First Civil Chamber, 8 February 2000, No 95-14.330; Cour de cassation , First Civil Chamber, 7 November 2012, No 11-25.891).
Unless otherwise agreed by the parties, the arbitral tri - bunal may order any protective or provisional measure it deems appropriate (Article 1468 of the French Civil Procedure Code). Such measures may maintain or restore the status quo, preserve assets or evidence, or facilitate enforcement of the award. They bind only the parties to the arbitration. State courts retain exclusive power to order conservatory attachments and judicial security measures. The arbitral tribunal may attach a penalty payment to an interim measure. It does not, however, have coercive powers against third parties, and not every interim decision qualifies as an arbitral award capable of exequatur. Thus, the parties must seek enforcement of interim measures before the national courts (see 6.2 Role of Courts ). From 1 January 2027, the new Article 1468-1 of the French Civil Procedure Code will expressly empower the arbitral tribunal, for as long as it remains seised, to itself quantify the amount of a penalty payment that it has ordered, by way of an arbitral award. 6.2 Role of Courts Before the constitution of the arbitral tribunal, the parties may apply to the French courts for interim measures without waiving 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 applicant satisfies 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 are justified by the existence of a dispute (Articles 834 and 872 of the French Civil Procedure Code); (b) protective measures to prevent imminent
359 CHAMBERS.COM
Powered by FlippingBook