The International Arbitration Review: France


French arbitration law is codified under Articles 1442 to 1527 of the French Code of Civil Procedure (CCP) reformed by Decree No. 2011-48 of 13 January 2011. French law provides for a dualistic approach separating domestic and international arbitration. Provisions on international arbitration are embodied under Articles 1504 to 1527 CCP. Article 1506 CCP sets forth several articles related to domestic arbitration that are also applicable to international arbitration.2

French law on international arbitration provides for no specific formal requirement in relation to arbitration agreements. French law affirms both the positive and negative effects of the compétence-compétence principle: arbitral tribunals have exclusive jurisdiction to rule on objections to their jurisdiction;3 and when a dispute subject to an arbitration agreement is brought before a court, such court shall decline jurisdiction, except if an arbitral tribunal has not yet been seized of the dispute and if the arbitration agreement is manifestly void or manifestly not applicable.4

French courts have the power to assist arbitration during the constitution of an arbitral tribunal through the supporting judge both in the taking of evidence and by ordering interim measures.

The confidentiality provisions are only applicable to domestic arbitration; they do not apply to international arbitration. Hence, if parties want to make sure that their proceedings remain confidential, they have to make an express provision to that effect.

Disputes related to arbitration at the setting aside stage are submitted to the Paris Court of Appeal. The time limit to submit an application to set aside an award rendered in France is one month from the service (signification), unless otherwise agreed by the parties.5 An award may be set aside on the basis of one of the following grounds:

  1. the arbitral tribunal wrongly upheld or declined jurisdiction;
  2. the arbitral tribunal was not properly constituted;
  3. the arbitral tribunal ruled without complying with the mandate conferred upon it; due process was violated; or
  4. recognition or enforcement of the award is contrary to international public policy.6

The enforcement of international arbitral awards is sought before the Tribunal judiciaire7 for awards rendered abroad or in Paris.

The parties can also apply for the revision of an award before the arbitral tribunal.8

Historically, French courts have adopted a pro-arbitration stance significantly contributing to the evolution and codification of law and practice with their profuse jurisprudence. Therefore, France is traditionally considered to be one of the most-preferred places for arbitration. However, as explained in the previous edition and below, some recent trends in case law might have brought about a change to this state of things.

The International Court of Arbitration of the International Chamber of Commerce is based in Paris, which means that disputes between parties and the institution are submitted to the French local courts.

The local arbitration institutions include, among others, the Centre of Mediation and Arbitration of Paris, the French Arbitration Association and the International Arbitration Chamber of Paris.

The year in review

i Developments affecting international arbitration

The French system has witnessed recent modifications to the definition of the arbitration agreement,9 as well as the introduction of provisions related to the immunity of assets of foreign states in France10 that set a requirement of a prior court authorisation, and a limited number of cases in which it can be granted, to enforce or take interim measures against the property of foreign states.

As explained in the previous edition,11 2018 was particularly marked by the creation of the International Chamber of the Paris Court of Appeal (CICAP). The CICAP was set up to hear international trade disputes, which include cases related to international arbitration. The CICAP also has jurisdiction to hear appeals of decisions of the International Chamber of the Paris Commercial Court in the first instance. The procedure before this new Chamber is tailored to be adapted to international commerce and to improve the efficiency of proceedings. Thus, exhibits can be submitted without being translated into French and pleadings can be conducted in English. There is also the possibility to hear witnesses and experts in English. However, parties' submissions are still to be drafted in French. While cases related to set aside proceedings and enforcement proceedings were traditionally allocated to the Paris Court of Appeal Pole 1 Chamber 1, as of March 2018, it appears that new cases in these matters are systematically referred to the CICAP (Pole 5 Chamber 16). 2019 was marked by the first decisions rendered by the CICAP.

Judicial activity in France was greatly affected by the covid-19 pandemic in the first semester of 2020. Hearings and the issuances of judgments scheduled before 11 May 2020 before the Paris Court of Appeal in set aside proceedings and appeals on recognition and enforcement matters have been postponed. The affected cases are yet to be rescheduled, from September 2020 onwards. Consequently, the total number of decisions rendered in 2020 will drop significantly.

ii Arbitration developments in local courts

Jurisdiction and admissibility of claims

Jurisdiction is one of the five grounds under Article 1520 CCP to set aside an arbitral award in France.

One of the first decisions of the newly established CICAP concerned the ground of jurisdiction and more specifically the issue of the enforceability of arbitration agreements.12 The dispute originated in a business relationship dating back to the 1980s between a German company and a French company for the distribution of seeds in France. The French company brought an action before the Paris Court of Appeal, and the defendant raised jurisdictional objections. The question before the Court was whether the arbitration clause stipulated in Article 87.1 of the Rules and Practices of the International Seed Federation, which were referenced in the confirmations of the company's orders, was binding on the French company. Since the orders' confirmations systematically referred to the Rules and Practices of the Federation, a custom that could not be ignored by the French company having been a professional in the field in question for over 30 years, the Court found that it was bound by the arbitration clause incorporated 'by reference'. The Court subsequently recalled that, under Articles 1448 and 1506 of the CCP, in the absence of a finding of the manifest invalidity or unenforceability of an arbitration clause, it is for the arbitrators alone to rule on their own jurisdiction. Here, the existence of a dispute as to the whether the clause required the parties to go to arbitration or simply gave them the faculty to do so did not constitute a ground of manifest nullity or inapplicability of the clause; thus, the Court had no jurisdiction to interpret the clause and concluded that the case fell within the jurisdiction of an arbitral tribunal.

Independence and impartiality of arbitrators

The grounds of independence and impartiality of arbitrators were thoroughly considered in the previous edition.13 In particular, the requirement of prompt disclosure by arbitrators of any circumstance of such nature as to affect their independence or impartiality was extensively discussed in the Court of Appeal decision of 27 March 2018 in the Audi Volkswagen case.14 The case concerned agreements for the distribution of Audi and Volkswagen vehicles and spare parts by the Qatari company, as well as other related customer services. The Paris Court of Appeal set aside the ICC award on the basis that the arbitral tribunal was not properly constituted, since the arbitrator had failed to disclose existing links between his legal firm and entities of the Volkswagen group, these circumstances being likely to create a reasonable doubt as to his independence and impartiality. If the services rendered by the arbitrator's firm in the past were considered a well-known fact, which was accessible to the parties at the start of the proceedings, it cannot reasonably be imposed on the parties to continue to research and monitor all publicly available information likely to concern the arbitrator. Accordingly, the arbitrator should have disclosed such information in the course of the proceedings. On 3 October 2019, the French Court of Cassation upheld the Court of Appeal decision.15 The Court confirmed that, although arbitrators have a general duty to disclose any circumstance that is likely to affect their independence or impartiality, they have no obligation to disclose notorious facts at the beginning of an arbitration (as those notorious facts can easily be retrieved by the parties themselves). The Court then established that, nonetheless, arbitrators have the duty to inform the parties of any fact or circumstance occurring during the course of proceedings, even if notorious, which is likely to affect their independence or impartiality. The Court of Cassation, in line with the traditional strict and subjective standard imposed on arbitrators in assessing their duty of disclosure, hence, confirmed Court of Appeal's reasoning as regards the restriction introduced to the notorious facts exception to an arbitrator's duty of disclosure, which places a further burden on arbitrators to update their disclosures during the course of an arbitration.

The CICAP also issued a decision in early 2020 on grounds of the independence and impartiality of arbitrators regarding the scope of arbitrators' duty of disclosure of any circumstance of such nature as to affect their independence or impartiality.16 The case dealt with a dispute between three Brazilian companies parties to an offshore oil exploitation consortium in Brazil governed by a joint operating agreement (JOA) that led to the exclusion of one of the consortium members and prevented it from selling its stake in the JOA. The excluded member initiated arbitration in Paris under the aegis of the LCIA to challenge the validity of the JOA's clauses and obtain compensation for the damage suffered. On 24 September 2018, the arbitral tribunal rendered a Phase I award. On 2 November 2018, a new lawyer was added to the team of one of the defendants, which resulted in an actualisation of the arbitrators' declaration of independence, revealing new information. After an unsuccessful challenge of one of the arbitrators, the claimant brought an action to set aside the arbitral award on the ground that the arbitrator chosen by one of the defendants failed to disclose personal links with a law firm that had as its client the majority shareholder of that party, and that this omission was such as to cast doubt on the arbitrator's independence and impartiality from the standpoint of a reasonable observer. The defendant argued that such links constituted notorious facts that the arbitrator had no obligation to disclose.

The Court of Appeal had to consider whether the information at stake could be considered notorious and, if not, whether the undisclosed links did amount to a lack of independence and impartiality. First, the Court of Appeal held, on a circumstantial assessment of the facts, that the information was accessible only after a careful review and consultation of the arbitrator's website, requiring, for instance, the opening of several links before the law firm in question could be cited. These several successive operations were similar to investigative measures, which excluded the notion that the information be considered easily accessible and, accordingly, notorious. Therefore, the arbitrator should have revealed those links in his statement. However, the Court of Appeal then found that the undisclosed information was not such as to cast reasonable doubt in the parties' minds as to the arbitrator's independence and impartiality since it had no impact on the outcome of the case. While the relationship had ceased two-and-a-half years before the commencement of the arbitration, and this could not be considered a sufficient period of time to overcome the duty of disclosure, there was no objective evidence that the arbitrator's activity had given rise to any material, intellectual or business relationship between the defendant's shareholder and the arbitrator. As a result, the arbitrator's omission did not, on the facts, constitute sufficient ground for annulment of the award.

Compliance with the mandate

Violation of the mandate is another ground under Article 1520 CCP to set aside an arbitral award in France.

A case rendered by the CICAP last year dealt with the issue of breach of the arbitrator's mandate, in particular when interpreting the law applicable to the merits of the case.17 On 14 December 2007 and 21 January 2008, the Democratic Republic of Congo (DRC) entered into contracts for the sharing of production of hydrocarbon resources with a consortium of South African companies. Divine Inspiration Group Ltd, one of the consortium members, initiated arbitration proceedings against the DRC since the contracts had not been approved by the President of the DRC. On 7 November 2018, the arbitral tribunal ordered the DRC to pay compensation for the damage suffered by the claimant. Upon the DRC's application, the case was referred to the Paris Court of Appeal on the ground that the arbitral tribunal had breached its mandate, in violation of Article 1520 3° CCP, by failing to apply the case law of the Congolese Supreme Court that interpreted the Congolese Constitution as conferring discretionary power to the President in the approval of oil production contracts. The Court ruled out the action for annulment by considering that the arbitral tribunal had rightfully ruled on the grounds of the applicable law to the contracts, and considered and interpreted the case law. Hence, according to the Court, the arbitral tribunal did not depart from its mandate engaging in this interpretation. In other words, it is not for the Court of Appeal to assess the application of the law by an arbitral tribunal. By doing so, it would engage in a revision on the merits of the award, which is not permitted under French law.

International public policy

International public policy has probably been one of the most debated grounds for setting aside in recent years. In the previous edition, it was extensively discussed due to the notable decisions in the Belokon, MK Group, Democratic Republic of Congo and Alstom cases.18 The decisions rendered since then by the Paris Court of Appeal on the ground of international public policy are in line with the previous case law.

There were important developments concerning the Alstom case, dealing with the dispute between Alstom Transport SA, Alstom Network UK Ltd (collectively, Alstom) and the Hong Kong consulting company, Alexander Brothers Ltd (ABL), in relation to three contracts in the railway sector in China that were eventually awarded to Alstom. In December 2013, ABL initiated arbitration proceedings against Alstom in Geneva to obtain payment of outstanding amounts under the contracts, pursuant to the ICC arbitration clause contained in the contracts. Following the award issued in January 2016 ordering Alstom to pay the outstanding amounts, plus interest and costs, the latter filed a set aside application on the ground of corruption before the Federal Court of Lausanne, which was dismissed, as well as an application to annul the exequatur obtained in France by ABL before the Paris Court of Appeal. In the first decision dated 10 April 2018,19 the Court of Appeal set out a list of red flags to be considered to prove the existence of corruption. Considering that the parties had not had the opportunity to discuss these elements, the Court ordered the reopening of the proceedings and compelled the production of relevant evidence by Alstom, inviting the parties to discuss the existence of a contract procured by corruption. At the outset, the Court of Appeal considered that it had the power to investigate all factual and legal elements necessary to determine whether recognition or enforcement of an award would violate international public policy in a manifest, effective and concrete way, and in doing so, that it is bound neither by the findings of an arbitral tribunal nor by the applicable law chosen by the parties. Moreover, the Court of Appeal considered that it was not concerned with whether the contractual provisions, and particularly the compliance rules, had been correctly performed, a question which fell outside the scope of control of the enforcement judge. The Court of Appeal carried out a detailed red flags analysis on the basis of the evidence produced, and concluded that there were serious, precise and consistent indications that ABL, without its knowledge, was involved in corruption activities of public officials which is prohibited as a matter of international public policy. In particular, the Court of Appeal took into account that both the Minister of Railways and the Deputy Chief Engineer of that Ministry were sentenced to life imprisonment at that time, and information that Alstom acknowledged under the 2013 and 2014 agreements with the US Department of Justice having been involved in some corrupt practices. The Court of Appeal went on to refuse the enforcement of the award on the ground that it infringed the French conception of international public policy, thereby confirming its proactive approach to corruption and increasing control over arbitral awards when corruption allegations are put forward by the parties.20

Another interesting decision on this ground of annulment concerned the recognition and enforcement in France of international arbitral awards that have been previously annulled in their country of origin.21 The case at hand originated in a dispute between the Egyptian national gas company, NATGAS, and the public entity in charge of gas and oil activities, named the Egyptian General Petroleum Corporation (EGPC), concerning a natural gas supply contract in Egypt. Following an arbitration application by NATGAS before the Regional Commercial Arbitration Centre in Cairo pursuant to the arbitration clause in the contract, the arbitral tribunal issued an award on 12 September 2009 ordering EGPC to pay compensation for the damage suffered by the claimant. NATGAS had obtained the exequatur of the award in France on 19 May 2010, but the award was subsequently annulled in Egypt on 27 May 2010 on the ground that the arbitration clause did not receive ministerial approval in violation of Egyptian public policy. An appeal against the exequatur was filed by EGCP leading to several successive proceedings before the French courts. In the decision under scrutiny, the Paris Court of Appeal, to which the case was referred for a third judgment, maintained the decision to grant the exequatur. After recalling that French provisions on recognition of arbitral awards shall apply to both domestic and international arbitral awards issued abroad, the Court of Appeal qualified the current arbitration as international on the ground that the transaction had implications that were not limited to Egypt (a foreign shareholder of NATGAS was involved in the contract as a technical partner, and an Italian bank as well as Italian suppliers were involved in the financing of the project). Therefore, Egyptian public policy cannot prevent the enforcement of an arbitral award in France. Moreover, the annulment of the award in Egypt was irrelevant since, pursuant to Article VII, 1 of the New York Convention and French case law, the annulment of an arbitral award at the place of the arbitration does not constitute a ground for refusing the recognition and enforcement in France of a foreign award. This issue has given rise to an extremely divisive debate since the famous Putrabali case,22 and even before.23 However, it is to be noted that the decision taken by the Paris Court of Appeal on 21 May 2019 deals with a slightly different situation as both parties were Egyptian entities, the contract was to be performed in Egypt, Egyptian law was applicable to the merits, the place of the arbitration was in Egypt and the case was administered by a an Egyptian institution.

Enforcement of international arbitral awards

As mentioned above, the French legislator introduced new provisions on the immunity of foreign states.24 A decision of the Court of Cassation of 10 January 2018 ruled that, notwithstanding the fact that the new provisions do not apply to enforcement measures made prior to their entry into force,25 they should nevertheless be taken into account.26

A first noteworthy decision was rendered by the CICAP following a request for stay of enforcement lodged by a foreign state.27 The case originates from the arbitration proceedings based on the bilateral investment treaty (BIT) of 27 November 1998 concluded between the Russian Federation and Ukraine. Russia brought an action for annulment of the arbitral award of 26 November 2018 and requested from the pre-trial judge a stay of enforcement of the award under Article 1526 CCP, claiming there was a risk that enforcement attempts in various countries that do not guarantee adequate protection of its state immunity from execution would harm its rights. The Court of Appeal recalled that, under Article 1526 2° CCP, the benefit of a stay or adjustment of the enforcement of an award should be subject to a strict case-by-case assessment of the seriousness of the damage to rights, which the enforcement of an award was likely to cause, and that such risk must be sufficiently characterised on the day on which the court rules. The Court of Appeal then dismissed Russia's request, considering that the circumstance that enforcement proceedings could possibly be initiated did not constitute a relevant ground for ruling in favour of the stay of enforcement. Nor did the alleged absence of a state immunity's sufficient protection by certain foreign laws constitute a relevant ground: the merits of this alleged risk depend on the assessment of the circumstances of enforcement under the applicable foreign law in that country, which falls under the exclusive jurisdiction of the foreign judge where enforcement is sought. Finally, the Court of Appeal found that it was not established that the enforcement of the award was of such nature as to jeopardise the financial sustainability of the Russian Federation, in relation to the amount of the pecuniary convictions, and that the risk of the non-refunding of the payment of damages in the case of annulment of the award was not established.

A recent decision of the Paris Court of Appeal Pole 1 - Chamber 1 clarified, under a step-by-step approach, the scope of sovereign immunity from execution for state entities in relation to a state's diplomatic assets.28 The case under scrutiny arose from an award rendered on 22 March 2013 under the aegis of the Cairo Regional Centre for International Commercial Arbitration between Mohammed Abdel Mohsen Al-Kharafi (Al-Kharafi), a Kuwaiti company, and the Libyan government, which had concluded a rental contract as part of a large-scale tourism project in Tripoli. The Kuwaiti company sought enforcement of the award in France. The French courts issued an order of exequatur of the award and, pursuant to these decisions, Al-Kharafi had several enforcement measures carried out against the assets of the Libyan Investment Authority (LIA), and its wholly owned subsidiary, the Libyan Arab Foreign Investment Company (Lafico). On 11 October 2013, the LIA and it subsidiary challenged the enforcement measures before the former Tribunal de Grande Instance of Paris, which finally ordered their release on 10 July 2018 on the grounds that the Libyan state had not made an express and special waiver of its immunity from execution. Upon Al-Kharafi's application, the case was referred to the Paris Court of Appeal, which had to decide whether (1) the state wealth funds qualified as Libyan state entities, and accordingly were entitled to sovereign immunity from execution, and (2) if so, whether the Libyan state had waived its immunity, or (3) in the absence of a waiver, whether the seized assets were allocated and supposed to be used for non-commercial public service purposes and somehow linked to the party in the arbitration, which would thus be covered by the benefit of the immunity.

At the outset, the Court of Appeal specified that the new provisions on immunity from execution issued under the Law No. 2016-1961 (see above) shall be taken into account by the Court of Appeal even if not ratione temporis applicable to the proceedings at hand, thus confirming the above-mentioned approach of the French Court of Cassation.29 Following a circumstantial analysis, the Court of Appeal then decided that the LIA, and its subsidiary Lafico, qualified as state entities on the ground that they lacked the necessary organisational independence from the Libyan government. Consequently, they were in principle entitled to sovereign immunity from execution. However, the Court of Appeal considered that the immunity from execution was waived concerning the seized assets. Such waiver should be express but not necessarily specific. In addition, the seized assets did not fulfil a twofold condition as to their nature. On the one hand, the assets were clearly linked with the entity against which the action was brought since they belonged to such state entity. On the other hand, because they were financial products and sums of money deposited in a commercial bank, the assets were specifically used or intended to be used by the state for purposes other than non-commercial public service purposes. The Paris Court of Appeal consequently upheld Al-Kharafi's appeal and authorised enforcement over the targeted assets.

iii Investor–state disputes

France has ratified 115 BITs. Following the CJEU's Achmea decision,30 which ruled that intra-EU BITs were incompatible with EU law, and a declaration of the Member States of 15 January 2019, 23 Member States, including France, signed an agreement on 5 May 2020 for the termination of intra-EU BITs concluded to date (termination agreement).31 The termination agreement lists the BITs terminated. It also provides that the sunset clauses contained in intra-EU BITs are terminated and are devoid of legal effect, and arbitration clauses contained in the affected intra-EU BITs with a date of commencement of 1 January 2007 are void and inapplicable. Concluded investment treaty arbitrations proceedings are not prejudiced by the termination agreement; nor are affected agreements to settle a dispute amicably that are subject to arbitration proceedings initiated prior to 6 March 2018. However, pending disputes between an investor and a Member State shall be resolved via 'structured dialogue' overseen by an impartial facilitator within six months from the termination of the BIT in question or by bringing proceedings in national courts and invoking national judicial remedies. The termination agreement will come into force 30 days after the date of deposit of its instrument of ratification, approval or acceptance for each party. It remains to be seen whether the framework provided by the termination agreement proves to be practical, in particular concerning the structured dialogue option, and thus offers a satisfactory legal protection to EU investors making an investment in another Member State.

In 2019, no ICSID proceedings were initiated against France, and only one case has been initiated by a French investor against Croatia.

This year, case law developments particularly concern the jurisdiction of arbitral tribunals in investment arbitration disputes.

A first noteworthy decision concerned the Paris Court of Appeal's referral to the European Court of Justice for clarification of the notion of investment under the Energy Charter Treaty (ECT).32 The facts of the case originated in a long-running dispute in relation to agreements between Energoalians (subsequently Komstroy), a Ukrainian company, and a Moldavian public company, under which Energoalians was to supply electricity to the latter through an intermediary company, Derimen. Having failed to pay the intermediary contract, the Moldavian company's debt was contractually assigned to Energoalians, which initiated arbitration proceedings to obtain payment of the debt. An award issued in Paris in 2013 on the basis of the ECT condemned the state to pay compensation to the Ukrainian investor. In its decision dated 12 April 2016, the Paris Court of Appeal Pole 1 - Chamber 1 set aside the award on the ground that the tribunal had wrongfully upheld its jurisdiction, given that the debt in this case could not constitute an investment within the meaning of the ECT. The decision having been quashed by the French Court of Cassation, the question was sent back to the lower courts. Hearing the case once again, the Court of Appeal, by a judgment of 24 September 2019, decided to stay the proceedings and refer three questions for preliminary ruling to the CJEU on the interpretation of the notion of investment under the ECT, which, pursuant to Article 26(1) ECT, is relevant in ascertaining the jurisdiction of the arbitral tribunal. In fact, the Court considered that since the ECT was an international agreement concluded between the EU (and its Member States), and thus third states fell within the category of 'acts of the institutions' of the Union, the CJEU had jurisdiction to interpret its provisions under Article 267 TFEU. The awaited CJEU decision shall have a significant impact on the scope of future ECT-based investment arbitration proceedings, should the CJEU accept its jurisdiction to hear the matter.

Another decision worth reporting was rendered in the context of set aside proceedings related to an investment arbitration award against the Republic of Poland.33 The facts of the case date back to 1994 when the claimants, an American citizen and two American companies, Schooner Capital LLC and Atlantic Investment Partners LLC, acquired shares in three Polish companies. They later formed a Polish company to collect commissions paid by the three Polish companies for management services. Following tax controls by the Polish tax authorities on the reality of the services, tax adjustments were ordered that led to one of the Polish companies going bankrupt in 2003. The claimants brought arbitration proceedings against Poland based on an alleged violation of the BIT concluded between the United States and Poland. In an arbitral award rendered on 17 November 2015, the tribunal declared it had no jurisdiction, as the dispute concerned tax issues rather than the performance of the investment contract. An action to set aside the award was filed before the Paris Court of Appeal, in particular on the ground that the arbitral tribunal had wrongly denied its jurisdiction, since Poland did not act in good faith when exercising its tax adjustment, and breached the mission entrusted to it by failing to declare itself competent on the basis of the BIT's most-favoured-nation clause. However, these objections had not been invoked by the claimants before the arbitral tribunal during the arbitration proceedings. By a decision dated 2 April 2019, the Paris Court of Appeal refused to set aside the arbitral award. In particular, the Court held that the claimants' arguments were inadmissible because they had not been raised in the course of the arbitration. Notably, the Court held for the first time that Article 1466 of the French CCP, which provides that 'a party which, knowingly and without a legitimate reason, fails to object to an irregularity before the arbitral tribunal in a timely manner shall be deemed to have waived its right to avail itself of such irregularity', is not limited to procedural irregularities, but also applies to irregularities or arguments on the merits of a case that could have been raised in an arbitration. The Court specified that the only exception concerns substantive international public policy-based objections, which can always be raised during annulment proceedings.

Outlook and conclusions

The year under review was marked by the first decisions rendered by the CICAP, which is hearing set aside applications and appeals over exequatur decisions. The decisions of the International Chamber of the Paris Court of Appeal seem so far to be in line with the previously established case law. It remains to be seen whether the decisions of the new chamber on issues such as corruption and fraud will follow the dominant approach in favour of judicial intervention.

The year under review was also affected by the covid-19 pandemic. However, the real impact of the pandemic on judicial activity within the framework of the setting aside, recognition and enforcement of proceedings remains to be seen.


1 Valentine Chessa and Marina Matousekova are partners, and Nataliya Barysheva is a senior associate at CastaldiPartners. The authors wish to thank Sofia de Felice for her invaluable assistance.

2 Articles 1446–1448 (1, 2), 1449, 1452–1458, 1460, 1462, 1463 (2°), 1464 (3°), 1465–1470, 1472, 1479, 1481, 1482, 1484 (1, 2), 1485 (1, 2), 1486, 1502 (1, 2) and 1503 CCP.

3 Article 1465 CCP.

4 Article 1448 CCP.

5 Article 1519 CCP.

6 Article 1520 CCP.

7 From 1 January 2020, in the framework of the implementation of the reform for judicial reorganisation, the Tribunal judiciaire replaced the Tribunal de grande instance. Article 1516 1 CCP: 'An arbitral award may only be enforced by virtue of an enforcement order (exequatur) issued by the tribunal judiciaire of the place where the award was made or by the Tribunal judiciaire of Paris if the award was made abroad.'

8 Article 1502 1 and 2 CCP.

9 Law No. 2016-1547 of 18 November 2016 related to the 'modernisation of justice of the 21st century' provides a new definition of the arbitration clause at Article 2061 of the French Civil Code (free translation):
An arbitration agreement shall be accepted by the party against which it is invoked, unless that party succeeded to all rights and obligations of the party, which initially accepted it.
If one of the parties has not contracted in the course of its professional activity, the arbitration agreement cannot be invoked against that party.

10 Law No. 2016-1691 of 9 December 2016 relating to the transparency, anticorruption and modernisation of economic life deals, among other things, with the immunity of assets of foreign states in France, and introduces three new provisions in the French Code of Civil Enforcement Proceedings: Articles L111-1-1 to L111-1-3.

11 The International Arbitration Review, tenth edition, 2019, pp. 190–1.

12 CA Paris, Pole 5 – Ch. 16, 11 December 2018, No. 18/17723, Société PH Petersen Saatzucht Lundsgaard Gmbh c. Sarl Alpha Semences.

13 The International Arbitration Review, tenth edition, 2019, pp. 192–5.

14 CA Paris, Pole 1 – Ch. 1, 27 March 2018, No. 16/09386.

15 Cass., 1re civ., 3 October 2019, No. 18-15.494.

16 CA Paris, Pole 5 – Ch. 16, 25 February 2020, No. 19/07575.

17 CA Paris, Pole 5 – Ch. 16, 7 January 2020, No. 19/07260.

18 The International Arbitration Review, tenth edition, 2019, pp. 197–8.

19 The International Arbitration Review, tenth edition, 2019, pp. 197–8.

20 CA Paris, Pole 1 – Ch. 1, 28 May 2019, No. 16/11182, Société Alstom Transport SA et autre c/ société Alexander Brothers Ltd.

21 CA Paris, Pole 1 – Ch. 1, 21 May 2019, No. 17/19850, Société Egyptian General Petroleum Corporation v. Société National Gas Company (NATGAS).

22 Cass, 1re civ., 29 June 2007, No. 05-18.053, Putrabali.

23 Cass, 1re civ., 23 mars 1994, No. 92-15.137, Hilmarton.

24 Articles L111-1-1 to L111-1-3 of the French Code of Civil Enforcement Proceedings.

25 In force since 9 December 2016.

26 Cass., 1re civ., 10 January 2018, No. 16-22.494.

27 CA Paris, Pole 5 – Ch. 16, 22 October 2019, No. 19/04161.

28 CA Paris, Pole 4- Ch. 8, 5 September 2019, No. 18/17592, Société Mohamed Abdel Moshen Al-Kharafi et Fils c/ société Libyan Investment Authority et al.

29 Cass., 1re civ., 10 January 2018, No. 16-22.494.

30 CJEU, 6 March 2018, case No. C-284/16, Slovak Republic v. Achmea BV.

32 CA Paris, Pole 1 – Ch 1, 24 September 2019, No. 18/14721, Moldova v. Komstroy.

33 CA Paris Pole 1 – Ch. 1, 2 April 2019, No. 16/24358, M Vincent JZ, Schooner Capital LLC et & Atlantic Investment Partners LLC c. Republic of Poland.

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