Report on the planned reform of French arbitration law: towards a consecration of the autonomy of French arbitration law

The most significant proposal is the introduction of a Code of Arbitration. While most of the rules governing arbitration in French law are currently scattered across more than twenty different pieces of legislation, the proposed code would bring them together in one place.

Based on the observation that such fragmentation affects the overall understanding of French arbitration law, the Committee drafted a Code of Arbitration, which aims to allow greater clarity of French arbitration law. This strengthens its international attractiveness and raises the possibility of having a multilingual version of this unique legislative instrument.

In addition to enshrining several longstanding principles in arbitration - such as the autonomy of the arbitration agreement, the priority of the arbitrator to rule on its own jurisdiction, speed and loyalty of the proceedings, confidentiality, and the recognition of awards set aside abroad - one of the Code's major innovations would be the unification of arbitration law through the creation of a common body of text for domestic and international arbitration. Currently, the provisions in the French Code of Civil Procedure relating to arbitration distinguish between domestic and international arbitration. More specifically, most provisions relating to international arbitration are governed by reference to those relating to domestic arbitration, sometimes making it difficult for international practitioners to handle this legislative tool.

The Committee also noted that this choice was justified by the fact that "the criterion of internationality is itself porous, as one quickly switches from domestic to international without even realising it”. The Committee considers that when the parties conclude their arbitration clause, they are unaware of the nature of an eventual dispute, and therefore whether it will be domestic or international, while the arbitrator exercises the same judicial function regardless of whether the dispute is domestic or international.

Therefore, the draft Code of Arbitration as currently proposed would be divided into general provisions applicable to both domestic and international arbitration, along with rules specific to each. There will also be special provisions governing arbitration procedures in specific areas such as family, labour, consumer law, intellectual property, or administrative matters.

One of the objectives of this reform is to make arbitration more efficient. To this end, the Committee considers that the arbitrator should be able to "benefit from the support of the state judge so that he can carry out his mission successfully".

The Committee suggests that the powers of the supporting judge be extended beyond issues relating to the constitution of the arbitral tribunal. The supporting judge would have extended powers to prevent the denial of justice and to ensure the willingness of the parties to have recourse to arbitration. The role of the supporting judge would also be reinforced in the event that referring the matter to an arbitrator is impossible or when the issuance of an award within a reasonable time is compromised. It could also have jurisdiction in the event of a serious failure of the arbitration centre or to prevent a brutal application of institutional arbitration rules that would lead to a denial of justice.

Furthermore, the Committee suggests granting the supporting judge the new power to enforce interim or provisional measures ordered by an arbitral tribunal or an emergency arbitrator. This is one of the most notable proposals of the reform as it would have the effect of strengthening the decisions taken by the arbitrators during the proceedings.

The proposal for an autonomous procedural regime concerning arbitration-related litigation before the Court of Appeal

In France, Courts of Appeal have jurisdiction to hear the recourses against arbitral awards, and in particular actions for annulment against awards rendered in France, with the Paris Court of Appeal being preeminent due to territorial jurisdiction for actions for annulment of awards rendered in Paris.

The Committee suggests establishing an autonomous procedural regime before the Court of Appeal specifically for the arbitration-related litigation which would be provided for in the Code of Arbitration (and no longer in the French Code of Civil Procedure). This would include compulsory procedural timetables, the abolition of the possibility for the Court of Appeal to rule on the merits (currently only possible in domestic arbitration), and the possibility for the Court to hear arbitrators (or to take their written statements), when their independence or impartiality is called into question.

The Committee also suggests incorporating into the Code of Arbitration certain rules already applicable before the International Commercial Chamber of the Paris Court of Appeal such as allowing the production of documents in English without translation, or the possibility for parties, counsels, witnesses, experts to speak English before the Court.

Innovations and proposals for new post-award recourses

The Committee suggests distinguishing between the "recognition" and the "exequatur" of the award, opening the possibility for a party to only request the recognition of the substantial effectiveness of the award, an alternative to the request for exequatur of the award, which grants it recognition and enforceability in the French legal order.