FRANCE Law and Practice Contributed by: Kyum Lee, Florian Dessault, Hannah Cobbett and Claire Gonzalez, BDGS Associés
In the absence of an agreement between the parties, the arbitral tribunal determines the applicable proce - dural rules (Article 1509 of the French Civil Procedure Code). 7.2 Procedural Steps French law does not prescribe mandatory procedural stages. Certain fundamental principles must neverthe - less be observed irrespective of the procedural rules chosen by the parties. The tribunal must ensure equal treatment, respect due process and the adversarial principle, and conduct the proceedings diligently and in good faith (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, where possible, expeditiously, and to decide the dispute by rendering an award. French law grants the parties broad autonomy with respect to the power of the arbitrators, notably con - cerning the conduct of the arbitration proceedings. Nevertheless, 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 8.3 Powers of Compulsion ); 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. In domestic arbitration, the
parties may appear without representation or may be represented by a person of their choice (Articles 18, 19 and 1464 of the French Civil Procedure Code). Although the French Civil Procedure Code contains no equivalent express provision for international arbitra - tion, the same principle is generally accepted. 8. Evidence 8.1 Collection and Submission of Evidence French law gives the parties and arbitrators broad discretion over the collection and submission of evi - dence. Article 1509 of the French Civil Procedure Code empowers the arbitral tribunal to define the applicable procedural rules unless otherwise agreed by the par - ties. A tribunal seated in France may therefore organ - ise document production, including targeted requests, but such production is ordinarily narrower than US- style discovery. In practice, parties and arbitral tribunals seated in France frequently refer to the 2020 IBA Rules on the Taking of Evidence in International Arbitration, which are a balanced combination of the common law and civil law systems. Document requests are often organised in a Red - fern Schedule recording the requested category, the requesting party’s justification, the opposing party’s objections and the tribunal’s decision. 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 to cross-examine the witness are usually granted. Pur - suant to Article 1467 of the French Civil Procedure Code, the arbitral tribunal may call upon any person to provide testimony, but witnesses are not sworn in. 8.2 Rules of Evidence 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 by the parties. Irrespective of the rules of evidence chosen, the arbi - tral tribunal must ensure equal treatment of the parties
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