Arbitration In France: The 2011 Reform

On January 13, 2011, the French Ministry of Justice issued its Decree no. 2011-48 regarding reform of arbitration. The Decree implemented changes to the rules of civil procedure governing arbitration. These changes arguably represent the most important reform of French arbitration law since the early 1980s. The announced reforms will be codified in the French Code of Civil Procedure from Article 1442 to Article 1527 and entered into force on May 1, 2011. In a step rarely taken in France, the Ministry of Justice also published a Report to the Prime Minister explaining the new Decree and clarifying certain issues that may arise under the reformed provisions of the Code.1

The Decree confirms and reinforces the pro-arbitration philosophy of French law. France was one of the first countries to enact a modern arbitration law, by way of a series of reforms in 1980 and 1981. In the 30 years since those reforms were enacted, French courts have further strengthened the country's pro-arbitration legal regime by interpreting the Code of Civil Procedure in a manner that generally favors arbitration as a method of dispute resolution.

The reforms announced in January 2011 represent France's most recent step to remain a leading forum for international arbitration, with a modern, effective, and intellectually accessible legal regime governing the institution. To this end, the reforms collect and codify most of the principles of arbitration procedural law developed by French courts over the past 30 years. In effect, before the Decree of January 13 was issued, a large portion of French procedural law relating to arbitration could be found only in case law, not in the Code of Civil Procedure. By codifying these governing principles that were first developed in case law, the Ministry of Justice has made French arbitration law more accessible to international practitioners. The goal is that this added clarity in arbitration law will make France an even more attractive forum for international arbitrations.

The Decree also introduces a limited number of innovations in French arbitration law, some of which correspond to provisions in the arbitration laws of other countries. These changes generally tend to make France a more arbitration-friendly jurisdiction, with a court system that supports arbitration and effectively enforces arbitral awards.

The new French arbitration legislation contains provisions that apply exclusively to domestic arbitrations, provisions that apply exclusively to international arbitrations, and provisions that apply to both domestic and international arbitrations. This Commentary will focus on the provisions of the Decree governing international arbitration.2 First, we discuss the provisions in the Decree of January 13 that codify—and clarify—preexisting jurisprudential principles. Next, we discuss various legal changes effected by the Decree. Finally, we address the specific issues of confidentiality of arbitral proceedings under the new law and the new Code provisions' entry into force.

Codification of Established Jurisprudential Principles

One of the primary raisons d'être of the Decree and the revised Code provisions it contains is to consolidate and affirm French law governing civil procedure in the field of arbitration that has been developed by the French courts over the past 30 years. Some of the jurisprudential principles that will now be codified are as follows:

A Broad Interpretation of What Constitutes a Binding Agreement to Arbitrate. Article 1507 codifies a principle, already accepted in French case law, that international arbitration clauses are not subject to any requirement of form. That is, parties are free to agree orally to settle their disputes through arbitration.

This is important, as it is not a provision that may be found in other sources of arbitration law such as the 1958...

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