FRANCE Law and Practice Contributed by: Barbara Levy, Paul Talbourdet and Alison Vogt, De Pardieu Brocas Maffei
recourse, contrary to domestic arbitration. The pro - cedure for setting aside an arbitral award relies on commonly applicable civil procedures under French law. It is therefore subject to the provisions of Articles 900 to 930-1 of the Civil Procedure Code as amended by the aforementioned Decree No 2023-1391. There are five grounds on which the court of appeal may deny the enforcement of an international arbitral award, as follows: • the arbitral tribunal wrongly upheld or declined jurisdiction; • the arbitral tribunal was not properly constituted; • the arbitral tribunal ruled without complying with the mandate conferred upon it; • due process was violated; or • recognition or enforcement of the award is contrary to international public policy. In a judgment rendered on 7 June 2023, the Cour de cassation stated that – pursuant to Article 1498 of the Civil Procedure Code – a judgment declaring an action to set aside an award to be inadmissible does not render the award enforceable and does not exempt a person who intends to enforce the award from obtain - ing an exequatur order. International Public Policy The notion of international public policy has been interpreted by French case law in terms of French public policy requirements and not as truly interna - tional public policy. Notably, the Paris Court of Appeal has stated that “international public policy means our conception of international public policy – that is to say, the entirety of the rules and matters of fundamen- tal importance [that] the French legal system requires to be respected even in situations of an international character”. Historically, French courts used to perform a minimal review of objections on the grounds of international public policy. Indeed, they did not enquire whether the award infringed a rule of public policy of some other state. At the very beginning, the scope of this minimal review was limited to the “manifest infringement” of interna -
tional public policy, which means that the courts were to find whether the award constituted an “effective and concrete” violation of international public policy. Following an evolution of the French case law, the alleged infringement then had to be “serious, accu - rate and consistent”; however, this minimal review was criticised, as it did not prevent an award that infringed international public policy (bribery, launder - ing, etc) being enforced in France. The case law of the Paris Court of Appeal then showed a tendency towards a deeper assessment of international public policy, which was confirmed on 23 March 2022 by the Cour de cassation . The Cour de cassation confirmed the decision of the Paris Court of Appeal of 21 February 2021 (repealing an award infringing international public policy) by approving the foregoing – considering that the judge’s control “was neither limited to the evidence produced before the arbitrators, nor bound by the findings, assessments and qualifications made by them”. This means that a judge is still able to re-examine the facts, even though they are forbidden to amend the award, as long as their examination is only meant to assess whether the award does indeed infringe a rule of international public policy. French case law has clarified the scope of internation - al public policy, with French courts considering that the failure of the arbitrator to comply with a European rule of law – if this rule is imperative and effectively applicable to the case – infringes the French concept of international public policy. French international public order also encompasses equality of arms (in the context of the right to a fair trial), as well as access to justice (see Paris Court of Appeal, 23 November 2021). Ultimately, it should be emphasised that the French arbitration law that came into effect on 1 May 2011 provides the possibility for a party to enforce an international award notwithstanding a pending action to set aside or a challenge to enforcement. In this respect, two decisions of the Paris Court of Appeal on 12 July 2021 and 12 January 2022 held that the setting aside of the award by the court of the place of arbitration does not prevent the enforcement of the award in France.
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