Where find the best place to arbitrate



From PLI’s Course Handbook

International Arbitration 2009

#18221

4

why choose paris as the seat for

your next arbitration? the view

from the eiffel tower

Carmen Núñez-Lagos

Bredin Prat

[pic]

130 rue du Faubourg Saint Honoré

75008 Paris, France

Tel. +33 (0) 1 44 35 35 35

cnl@



Carmen Núñez-Lagos practices international arbitration at Bredin Prat in Paris. She is admitted before both the Paris and Madrid bars.

Prior to joining Bredin Prat in 2007, Carmen practised with a major Spanish law firm where she had extensive experience as counsel in international commercial arbitration and litigation in Europe, the USA and the Middle East under (ICC, ICSID, AAA, GAFTA, TAS and Spanish Arbitration Court rules). She was also a senior in-house legal counsel for a major telecom company in Spain. She was educated at the Universities of Exeter (LLM 1990), Bologna (Italy) and Zaragoza (Spain, License 1989) and was a law lecturer at universities in Spain and in the USA. She has published several articles on the subject of international litigation and arbitration and is a frequent speaker in international conferences. She currently also acts as an arbitrator in ICC arbitrations.

She is a member of the ICC Spanish national committee panel of arbitrators, of the Madrid Chamber of Commerce roster of arbitrators, of the Executive Committee of the French chapter of the Spanish arbitration club and of the ICC France anti-corruption commission. Carmen is fluent in Spanish (native speaker) French, English and Italian.

Why choose Paris as the seat for your next arbitration? The view from the Eiffel Tower

Carmen Núñez-Lagos

Bredin Prat, Paris

Of all “pro-arbitration” legal systems, none is more orientated towards the settlement of international commercial disputes by international commercial arbitration than France. The French legal and business community is one of the foremost advocates of international arbitration, viewing arbitration as the usual way to resolve disputes in an international and globalised environment.

When choosing the seat for your arbitration your main concern should, generally speaking, be whether interference from the national courts of the seat of arbitration will prevent you from giving effect to the arbitration agreement and obtaining an award within a reasonable time period. This article describes the approach to the regulation of arbitrations held in Paris, which greatly limits the level of court involvement in the arbitration process. As discussed in this article, the French legal environment is very supportive of the conduct of arbitral proceedings in accordance with the intentions of the parties and the arbitrator’s discretion and authority. As a result, it can be said without hesitation that Paris is a user-friendly seat for international arbitration that respects and recognises the arbitration process as a truly international arbitration procedure and, hence, should be considered as a great choice for your next arbitration.

a) The significance of the seat of arbitration

What is the significance of the seat of arbitration? On what basis should you choose one place over another?

While such questions may not be at the forefront of your mind during contractual negotiations, as the Paris Court of Appeal has observed[i], the choice of a seat for your arbitration is “a purely legal concept” which carries many practical consequences. For example, the choice of a particular seat is still considered in many countries to empower the courts of the chosen country to set aside the arbitral award. It may also affect the enforcement of the award in other jurisdictions. Consequently, the adoption of a particular seat is a decision that should be made with careful consideration.

The laws of the seat of arbitration are significant as they provide the recognition and support to the arbitral process. It is particularly important that the chosen legal environment respects the parties’ agreement to resolve their dispute by arbitration, and grants the parties the freedom to choose their arbitrators, to determine the procedural rules they are subject to, and to select the rules applicable to the merits of the dispute. Other relevant considerations include (i) whether, in the absence of agreement between the parties, the arbitrator is given extensive freedom to determine applicable procedural rules or the rules applicable to the merits; and (ii) whether the national laws of the seat allow the arbitrator the freedom to decide on his own jurisdiction in priority to any national court. In addition, it is worth noting that the laws of some jurisdictions may allow the selection of a separate jurisdiction for the consideration of an action to set aside the award. At the foundation of these considerations are two key issues: 1) where does the arbitrator derive his powers from to issue an award? (i.e. does the arbitrator dispense justice in the name of the state that is the seat of the arbitration, or is the arbitrator detached from any particular forum); and 2) how does the arbitral award gain its binding force? (i.e. is it solely through the recognition of the award by the state of the seat of the arbitration, or is it by the numerous jurisdictions willing to recognize and enforce the award, or is it, as some have suggested, through the existence of an “autonomous arbitral order”).

As stated, the French arbitration community has led the way in the development of an international arbitration process relatively free from state interference. In relation to the first issue, the understanding of the French courts is that the arbitrator has no forum and so does not dispense justice in the name of the State hosting the arbitration. Instead, and in relation to the second issue, the arbitrator derives his legal force from all the legal systems that are willing to enforce its award. Backed by the modern approach to international arbitration used by practitioners, French scholars[ii] have recently supported the view that the powers of an arbitrator derive indeed from a posited “arbitral legal order”, completely detached from any particular legal system. This autonomous arbitral legal order does not correspond to the national laws of the state of the seat of arbitration, nor does it correspond to the national laws applicable in the place of enforcement of the award. It exists in an independent sphere that is separate from national laws and jurisdictions. Accordingly, the French Cour de Cassation in a seminal decision “Putrabali[iii] has defined the concept of “international award”. In “Putrabali”, the Cour de Cassation stated that “an international award is a decision of international justice, not linked to any national legal order, the validity of which may be reviewed in accordance with the rules applicable in the country where its recognition and enforcement is sought”.

It is the first time a court of justice defines the concept of “international award” and is stated in the most explicit manner. Consequently, an international award is defined as a decision of international justice which relates to an autonomous international legal order.

As will be explained in the remainder of this article, French arbitration law is designed to recognise and support the arbitration process to its full extent. It provides a framework for self-regulation of the arbitral process within which the parties and the arbitrators are given complete freedom to determine the rules governing their arbitration. The one “missing piece of the jigsaw” in terms of giving absolute freedom to parties to determine the course of their arbitration in France is that it is not yet possible for the parties to waive their rights to set aside the award. This issue is discussed in more detail below.

b) What are the principles of international arbitration in France?

In France, a principal point of reference for international arbitrators is the French conception of the fundamental requirements of justice in international commerce. These requirements are embodied in the “substantive rules of international arbitration”, which are constantly developed by decisions of the French courts. Further, French international arbitration law is embodied in 6 articles of the New Code of Civil Procedure (“NCPC”) (articles 1492 to 1497). These articles of the NCPC deal with the composition of the arbitral tribunal, arbitral procedure and the law applicable to the merits of arbitral disputes. They are treated as rules applicable to international arbitration, and, as a result, are applicable to (i) any international arbitration with France as its seat, (ii) any arbitration governed by French law, and (iii) any arbitration held outside of France if an order enforcing or setting aside the award is sought in France.

A key feature of arbitration in Paris is that court assistance is highly “centralized”. French arbitrations are overseen by a handful of specialist judges sitting in Paris, who are extremely experienced in dealing with arbitration matters. To illustrate, actions relating to the formation of an arbitral tribunal are heard before the President of the Paris First Instance Court, and actions to set aside an arbitral award are heard before the Paris Court of Appeal. In both cases, the Cour de Cassation is the ultimate jurisdiction to settle any challenge. Thus, one benefit of choosing Paris as the seat of arbitration is that there is no risk of finding oneself before a judge inexperienced in international arbitration matters.

In light of these general observations, let us consider some specific rules applicable to the arbitral process in France relating to (I) the effectiveness of the arbitration agreement, and (II) the limits of the court intervention in the arbitral process.

I. Effectiveness of the arbitration agreement

a) The “Jules Vernes” decision: the autonomy of arbitration agreement from national laws

In France the concept of autonomy of the arbitration agreement is used not only to refer to the “separability” of the arbitration agreement from the main contract, which is granted[iv], but also to refer to the autonomy of the arbitration agreement from all national laws. In its recent “Jules Vernes” decision[v], the Cour de Cassation stated that “the principle of autonomy of the international arbitration agreement is a substantive rule of French international arbitration law which upholds the legality of the arbitration agreement without reference to any national law” [vi]. This does not mean that arbitration agreements are treated as lacking a governing law. Rather, such agreements are considered to be independent from the various national laws which would otherwise apply following a conflict of laws approach.

Essentially, the notion of “separability” of the arbitration agreement from the main contract denotes the idea that the arbitration agreement is unaffected by events related to the main contract. As a result, an arbitration agreement will not necessarily be governed by rules of the same nature and origin as those governing the main contract. The question is whether the rules governing the arbitration agreement should be selected by the choice of law rules, in which case a given national law will be applicable, or whether those rules are independent from the national law applicable. French courts avoid the choice of law selection and understand that the existence and the validity of the arbitration agreement are to be examined solely in the light of transnational substantive rules adapted to the international nature of arbitration, and that are considered to be, by the French legal system, fundamental requirements of justice. As a result, it can be said that the arbitration agreement is autonomous from any national law.

A further consequence of this approach is that the French courts are willing, in certain circumstances, to recognize an award made on the basis of an arbitration agreement that is considered ineffective in another jurisdictions. This is a logical consequence of the fact that the French courts assess the validity of an arbitration agreement without reference to national laws. Where an arbitration agreement has been found ineffective in a particular jurisdiction due to applicable national laws, it may nonetheless be found effective in France.

b) The “Bomar Oil” decision: the validity of an arbitration clause incorporated by reference

The French courts are willing to give effect to an arbitration clause contained in general terms and conditions incorporated by reference by a contract, even if such clause is not explicitly referred to in the contract. This contrasts with some other jurisdictions, in which it has been held that an arbitration clause in a standard set of terms and conditions may only be validly incorporated by reference if the parties explicitly refer to the arbitration clause. The French position is confirmed by the “Bomar Oil” decision of 1993[vii], in which the Cour de Cassation stated: “in the field of international arbitration, an arbitration clause, if not mentioned in the main contract, may be validly stipulated by written reference to a document which contains it, for instance general conditions or a standard-form contract, when the party against which the clause is invoked was aware of the contents of this document at the moment of concluding the contract and when it has, albeit tacitly, accepted the incorporation of the document in the contract”. Thus, the Cour de Cassation established a substantive rule according to which a valid arbitration agreement may be concluded by reference to general terms and conditions including an arbitration clause, if the parties have the necessary awareness of the contents of such terms and conditions. This gives an indication of the willingness of the French courts to recognize the validity of arbitration agreements in a wider range of circumstances than elsewhere.

It has been suggested that this approach gives rise to difficulties with article II of the New York Convention, which requires each contracting state to recognize arbitration agreements concluded by way of an “agreement in writing”, which is defined as “an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams”[viii]. Prima facie, this could be interpreted to exclude the sort of “tacit” consent to arbitration recognized by the Cour de Cassation in “Bomar Oil”. However, the French courts have decided that the “Bomar Oil” approach is permitted by article VII of the New York Convention, which states: “the provisions of the present Convention shall not… deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extend allowed by the law or the treaties of the country where such award is sought and relied upon”. This provision, referred to in France as “the most favourable right” has been interpreted as allowing a wider approach to the recognition of arbitration agreements, because of the statement that the Convention is not intended to deprive parties of the benefit of domestic laws more favourable to the arbitration process. As a result, the French courts recognize the validity of an arbitration agreement incorporated by reference, subject to the relatively liberal conditions stated above.

c) The “ABS” decision: the circulation of an arbitration agreement in a chain of contracts

The French courts have also taken a broad approach to the enforcement of an arbitration agreement in the context of an international chain of contracts. Where a sequence of contracts transfer ownership rights in a given product across international borders, the French courts have held that if the original sale contract contains an arbitration clause, the ultimate buyer of that product may be able to bring a direct arbitral action against the original seller at the other end of the chain. In its ABS decision of 27 March 2007[ix] the French Cour de Cassation ruled that: “In a chain of contracts where rights of ownership are transferred, the arbitration clause is automatically transferred in as much as it is accessory to a right of action, such right of action itself being accessory to the substantive rights transferred, without regard to the homogenuous or heterogenuous nature of this chain”.

In so finding, the Cour de Cassation has decided that the rules of law governing the transferability of the clause must be determined by a method other than that used to determine the rules applicable to the contracts themselves. A direct arbitral action in an international chain of contracts, is that set as a substantive rule of international arbitration. Unsurprisingly, this approach has been controversial and is the subject of a significant amount of debate in France. However, for the purposes of the present paper it will suffice to note that in the circumstances described above an ultimate end-user may be able to rely on an arbitration clause contained in the initial sale agreement of which it was not an initial signatory.

II. Effectiveness of the arbitral process: the limits to court intervention

a) The “Jules Verne” decision: the negative effect of the competence-competence principle as a mandate addressed to the French judge in all circumstances

The support of the arbitral process in France can be further seen in the way French law deals with the principle of “competence-competence”, which dictates that an arbitrator should be allowed to exercise its power to rule on its own jurisdiction before any court does so. In France, this principle has been taken to its logical conclusion: where an arbitrator has been engaged to rule on his jurisdiction, any courts to which the matter might otherwise have been referred to are required to refrain from examining the arbitrator’s jurisdiction before the arbitrator has had the opportunity to do so[x].

In its recent “Jules Vernes” decision, the French Cour de Cassation reaffirmed this principle, and took it a step further, stating that “the principle of the validity of international arbitration agreement and the principle according to which it is for the arbitrator to rule on his own jurisdiction are substantive rules of French international arbitration law which establish, on the one hand, the validity of the arbitration clause irrespective of any reference to a national law, and on the other hand, the efficiency of arbitration by permitting the arbitrator faced with a challenge to his jurisdiction to have priority to decide the challenge. The combination of the principles of validity and competence-competence prohibit, as a consequence, the French judge from carrying out a substantive and thorough review of the arbitration agreement, irrespective of where the arbitral tribunal has its seat. The permitted extent of the judge’s examination of the arbitration clause, before being asked to review its existence or validity in the context of an action brought against the award, is whether that clause is manifestly null or inapplicable”.

This means that the negative effect of competence–competence is now a substantive principle of international arbitration law in France, according to which, the court, whether the seat of the arbitration is in France or not, must refrain from ruling on the jurisdiction of the arbitrator, unless the arbitration agreement is manifestly null or inapplicable. As a result, the court is required to limit its review to a prima facie determination that the agreement is not manifestly null or inapplicable. So, once again the idea that arbitration is an autonomous process is protected and court interference is limited[xi].

It is worth noting that only the President of the Paris First Instance Court will be entitled to decide issues relating to the jurisdiction of an arbitrator. Thus, if the French courts do intervene in the limited circumstances described, it is ensured that the existence and validity of the arbitration agreement is not decided by other commercial or civil courts.

b) The “NIOC” decision: The judicial assistance at the constitution of the arbitral tribunal and the denial of justice

Where an arbitration clause exists, French law is designed to give effect to the parties’ intention to have their dispute settled though arbitration by empowering the courts to assist the parties if necessary. The courts have jurisdiction to resolve difficulties concerning the constitution of an arbitral tribunal not only if the seat is in France but also, irrespective of the seat, if French law has been chosen to govern the arbitral procedure. In these matters the jurisdiction of the French courts is confined to the President of the Paris First Instance Court, irrespective of whether the seat is in any other French cities. Again, this ensures that a very small number of learned judges will be involved in the arbitral process.

In its recent “NIOC” decision[xii] the Cour de Cassation further extended the international jurisdiction of the French court to assist in the constitution of an arbitral tribunal. The court held that the French courts had jurisdiction to appoint an arbitrator on behalf of a recalcitrant party to an arbitration that was not taking place in France, and was not subject to French procedural law. The decision was based on the fact that if jurisdiction were not granted to the French courts, there would have been a denial of justice, as the arbitration could not take place without court intervention.

The Cour de Cassation stated “the impossibility for a party to access a judge, even if it is an arbitrator, in charge of hearing its claim, to the exclusion of all national jurisdictions, and thus to exercise a right, which is part of the international public order protected by the principles of international arbitration and Article 6-1 of the European Convention on Human Rights, constitutes a denial of justice which justifies the international jurisdiction of the President of the Court of First Instance of Paris, acting in its mission as a national judge to assist and cooperate in the creation of an arbitral tribunal, when there is a link with France”.

The court made this decision notwithstanding that there was an extremely weak link between the arbitration and France, which derived from the fact that the parties had designated the President of the International Court of Arbitration as appointing authority (the ICC being a Paris-based body) and that article 1493 of the NCPC specifically reserves judicial assistance to an arbitration seating in France, or where the French arbitral procedural law is to be applied[xiii]. The court took a pragmatic approach and chose not to leave that party without a remedy.

In making this finding, the court affirmed that the right to have a dispute heard by an arbitrator is an imperative of universal justice, protected by article 6.1 of the European Convention on human rights. Therefore, in certain circumstances the right of access to arbitration proceedings has been placed on a similar footing as the right to be heard by a judge. The decision has been described as a purely judicial construction designed to reinforce the efficacy of arbitration and to respond to an “imperative of universal justice”. It has been suggested that it should be given the status of a land-mark decision[xiv] effectively embedding it in French law.

c) The “Miss France” decision: action to set aside awards rendered in Paris may be heard abroad

French law does not allow (i) any appeal against an arbitral award (i.e. to re-visit the merits of the dispute), (ii) any third party actions in respect of a dispute subject to an arbitration clause, (iii) any action to revise an award in the case of fraud, or (iv) any action to declare an award non-binding on a specific party. This means that a clause providing for an expanded judicial review of an award based on these factors is null and void in France.

However, an arbitral award rendered in France may be reviewed by domestic courts if a party applies for its enforcement in France, or if a party brings an action to set aside the award.

Where a party seeks enforcement of an award in France, it must apply to the Paris First Instance Court. In such circumstances, the court’s jurisdiction is triggered by way of an ex parte application and enforcement is therefore determined without any adversarial proceedings. If the court makes an order granting enforcement it does not need to give its reasons. On the other hand, if enforcement is refused, the court is required to give reasons and the applicant may bring an appeal before the Paris Court of Appeal, which would be adversarial in nature.

Actions to set aside arbitral awards are permitted in France and, under French law, the parties may not waive their right to bring such an action. The French courts are adamant on this principle. In both cases, the grounds on which the award may be reviewed or set aside are similar and very limited (see article 1502 of the NCPC[xv]).

In this context, a recent decision by the French courts has revisited the commonly accepted principle that only the courts of the seat of the arbitration have jurisdiction to set aside an award. In a surprising decision, the Paris Court of Appeal[xvi], ruled in the “Miss France” case that “the delocalisation of an award under French law of international arbitration does not exclude the possibility of an action to set aside the award by way of an agreement on jurisdiction before a judge other than that of the seat (of arbitration)”. With no further detail provided, this opens the way for the French courts to set aside foreign arbitral awards or for a foreign judge to set aside an award rendered in France. The key rationale behind this decision seems to be that, since the parties may choose the seat of the arbitration, and that seat determines the competent court to set aside the award, an indirect choice of that court is in fact being allowed. Hence, it is possible to grant the parties the possibility to make a short-cut, and exercise a direct choice of jurisdiction of the competent court to set aside, excluding judicial review of the award at the seat of arbitration.

The idea of the prorogation of jurisdiction over actions to set aside is a logical extension of the principle established by the Cour de Cassation in the aforementioned decision “Putrabali”[xvii], according to which an international award is a decision of international justice, which belongs to an autonomous international legal order. It also accords with a previous decision of the Paris Court of Appeal[xviii], which held that an international award is not integrated in the legal system of the seat of arbitration. In these two decisions, the French courts have framed the issue in two ways: on the one hand, there is the negative proposition by stating that an international award is not integrated in the legal system of the arbitral seat; on the other there is the positive statement, that an award is a decision of international justice and therefore autonomous[xix].

It follows from these principles that the French courts have neither title nor interest in controlling the award rendered in its territory, until the parties request enforcement in France. The award does not have any attachment to the State where its seat is, thus the French courts have deemed it acceptable for the parties to determine that an action to set aside can be brought in the courts of a separate jurisdiction.

The missing element in terms of allowing parties complete freedom to determine the course of their arbitral proceedings is the possibility of waiving an action to set aside, which is not yet permitted in France. Such a waiver is already permitted in Belgium[xx] and Switzerland[xxi] in certain limited circumstances, and would give the parties to an arbitration the option to avoid future challenges to an award if they so wish. Admittedly, the scholarly discussion on this issue is fervent, and it is commonly understood that the French court issued the “Miss France” decision to provoke reaction amongst the scholars. The principle is not yet a matter of substantive law in France.

From the point of view of parties considering Paris as a seat for their next arbitration, the additional flexibility of being permitted to choose the forum for any actions to set aside would undoubtedly be welcomed and would give the parties yet more freedom to conduct their arbitration in their best interest.

III. The Paris practice

If you are anxious to see arbitration proceedings progress expeditiously without excessive interference from domestic courts, the legal framework offered by Paris makes it an ideal choice for the seat of your next arbitration. Given the favourable attitude of the French legal establishment towards arbitration proceedings, you can reasonably expect that, as a party to an international arbitration in Paris, you would be left to freely determine the proceedings with the other side. However, as stated, this is not to say that the arbitration will be unsupported in the event of any difficulties with the process: highly specialised judges are available if you require court assistance.

Paris has a long history of international arbitration. You will find lawyers there with a wealth of experience, capable of handling arbitrations in a wide variety of languages and applying various laws[xxii]. It is no coincidence that the oldest and most active arbitral institution in the world, the ICC International Court of Arbitration, has its head office there.

The glamour and magnificence of Paris has been admired by the world for centuries. In combination with the practical benefits of holding an arbitration in Paris, this allows me without hesitation, to recommend Paris as the seat of choice of your next international arbitration.

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[i] CA Paris, 28 October 1997, Procédés de préfabrication pour le béton v. Libye, in Rev. Arb. 1998.399, Note B. Leurent.

[ii] See E. Gaillard, Aspects philosophiques du droit de l’arbitrage international, Martinus Nijhoff publishers, Coll. Les livres de poche de l’académie de droit international de La Haye, 2008, 240 p.

[iii] Cass. 1e civ., 29 June 2007, Société PT Putrabali adyaamulia v. Société Rena Holdings.

[iv] Cass. 1e civ, 7 May 1963, Ets. Raymond Gosset v. Carapelli:: “in international arbitration, the arbitration agreement, whether concluded separately or included in the contract to which it relates, shall, save in exceptional circumstances…, have full legal autonomy and shall not be affected by the fact that the aforementioned contract may be invalid”.

[v] Cass. 1e civ, 7 June 2006, Copropriété maritime Jules Verne et a. v. Société ABS American Bureau of Shipping et a.

[vi] This ruling is not anew. It was previously affirmed by the Cour de Cassation in two decisions: Cass.1e civ., 25 January 1999, Zanzi v. de Coninck, and Cass.1e civ.,4 July 1972, Hecht v. Buisman’s.

[vii] Cass. 1e civ, 9 November 1993, Bomar Oil NV v. Entreprise Tunisienne d’activités petrolières. See also commentaries on Fouchard, Gaillard, Goldman on International Commercial Arbitration, edited by E. Gaillard et John Savage, Kluwer, 1999, p 277.

[viii] Under article II, paragraph 1 of the 1958 New York Convention, each contracting state is required to recognize “an agreement in writing” under which the parties agree to submit their dispute to arbitration. Paragraph 2 of same stipulates that “the term agreement in writing” shall include an arbitral clause in a contract or an arbitration agreement signed by the parties or contained in an exchange of letters or telegrams.

[ix] Cass. 1e civ, 27 March 2007, Alcatel Business System (ABS) SA et a. v. Amkor Technology and others and note by Carmen Núñez-Lagos, Panorama de jurisprudencia francesa, in Spain Arbitration Review, 2008.3.

[x] Article 1458 of the NCPC compels any French court to decline jurisdiction over a matter if an arbitration agreement exists, provided that the merits of the dispute have been submitted to an arbitral tribunal. Although article 1458 refers to French arbitrations, the Cour de Cassation has extended its application to international arbitrations as well. In addition, if a matter has not yet been submitted to an arbitral tribunal, French case law establishes that the courts must also decline jurisdiction unless the arbitration agreement is patently void.

[xi] See supra note 7, Fouchard, p. 412. See also Gaillard and Banifatemi “Negative effect of competence-competence: the rule of priority in favour or the arbitrators”, in Enforcement of Arbitration Agreements and International Arbitral Awards – The New York Convention in Practice 257 (E. Gaillard and D. Di Pietro eds., Cameron May, 2008).

[xii] Cass. 1e civ, 1 February 2005, Etat d’Israel v. Société National Iranian Oil Company (NIOC).

[xiii] Article 1493 NCPC of the NCPC states: “where, for arbitration held in France or for those in relation to which the French procedure has been contemplated, the convening of the arbitration tribunal is facing difficulties, the first mover may, save where there is a contrary clause, seize the president of the Tribunal de Grande Instance of Paris in accordance with the manner laid down under article 1457”.

[xiv] See E.Gaillard, La jurisprudence de la Cour de cassation en matière d’arbitrage international, in Rev. Arb 2007.4.

[xv] Actions to set aside international awards rendered in France are so far very restrictive and only if it is included on the grounds listed in article 1502 of the NCPC. The list is exhaustive: (1) absence, nullity or expiration of the arbitration agreement; (2) irregular appointment of the arbitral tribunal; (3) incompatibility of decisions of arbitrators with the terms of their brief; breach of due process; (4) award is contrary to international public policy.

For an action to set aside an arbitral award rendered in Paris, the Court of Appeal of Paris will have jurisdiction (art. 1505). The decision taken by the court of appeals is appealable to the Cour de Cassation.

[xvi] CA Paris, 17 June 2004, Le Parmentier et autres v. Société Miss France et autres, in Rev. Arb 2006.161, note Azzi.

[xvii] See supra note 3.

[xviii] CA Paris, 14 January 1997, République Arabe d’Egypte v. Société Chromalloy Aero Services.

[xix] See supra note 2 and also F. Mantilla-Serrano, Panorama de Jurisprudencia Francesa, in Spain Arbitration Review, 2008.3.

[xx] Belgium’s Article 1717 (4) of the Judicial Code, as amended by Law of 19 May 1998 provides “the parties may, by an explicit declaration in the arbitraiton agreement or by a later agreement, exclude any application for the setting aside of the arbitral award, in case non of them is a physical person having his normal reidence in Belgium or a legal person having its registered office or branch in Belgium”.

[xxi] Switzerland’s Federal Code on Private International Law (CPIL, 18 December 1987) states in Article 192.1 : “If none of the parties have their domicile, their habitual residence, or a business establishment in Switzerland, they may, by an express statement in the arbitration agreement or by a subsequent written agreement, waive fully the action for annulment or they may limit it to one or several of the grounds listed in Art. 190 (2)”.

[xxii] In France, the parties to an arbitration are free to choose their representation and are not required to be represented by French counsel (“avocats”). As a result, such parties may represent themselves or choose foreign lawyers or non-lawyers as representatives if they so desire.

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