FRANCE Law and Practice Contributed by: Kyum Lee, Florian Dessault, Hannah Cobbett and Claire Gonzalez, BDGS Associés
10. The Award 10.1 Legal Requirements
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, each party bears the burden of proving the facts it alleges (Article 9 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). The arbitral tribunal does not itself have coercive pow - er to compel a non-party witness to appear before it. It may nevertheless draw appropriate inferences from a party’s failure to procure the attendance of a witness within that party’s control, subject to due process. Subject to legal disclosure obligations and unless the parties agree otherwise, domestic arbitration proceed - ings are confidential (Article 1464 of the French Civil Procedure Code). The precise scope of confidentiality depends on the circumstances, including any need to protect or enforce a party’s rights. International arbitration proceedings are not confi - dential by default under French law. Confidentiality may arise from the arbitration agreement, applicable institutional rules or an order of the arbitral tribunal. In both domestic and international arbitration, the arbi - tral tribunal’s deliberations are secret. 9. Confidentiality 9.1 Extent of Confidentiality
From 1 January 2027, the new Article 1478 of the French Civil Procedure Code will codify the definition of an arbitral award developed by case law ( Cour de cassation , First Civil Chamber, 12 October 2011, No 09-72.439) and provide that an award is an act that finally determines, in whole or in part, the dispute as to jurisdiction, a procedural issue capable of terminating the proceedings, or the merits. The arbitral award must set forth the parties’ claims and arguments and state reasons (Articles 1482 and 1506 of the French Civil Procedure Code). In domes - tic arbitration, the absence of reasons is expressly sanctioned. In international arbitration, by contrast, Article 1483 does not make an absence of reasons a standalone ground for setting aside the award. In exceptional circumstances, however, the defect may engage Article 1520, notably where it shows that the tribunal failed to perform its mandate or where recog - nition or enforcement would conflict with international public policy. The award must also indicate the identity of the par - ties and their counsel, the arbitrators, as well as the date and the place where it was rendered (Article 1481 of the French Civil Procedure Code). The award is made by a majority of the arbitrators. If there is no majority, the President of the tribunal decides alone. If one or more arbitrators refuses to sign, that refusal is recorded in the award (Article 1513 of the French Civil Procedure Code). The new Articles 1480-1 and 1480-2 of the French Civil Procedure Code will also expressly recognise arbitral awards drawn up in digital form, subject to the use of a qualified electronic signature. 10.2 Types of Remedies French law does not provide specific rules governing or restricting the types of remedies that an arbitral tribunal may award. Thus, all types of remedies are available provided that they are not contrary to inter - national public policy.
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