Elise

GOUELLO
Dissertation : international and domestic arbitration under french law 1

France, particularly the capital, Paris, is a main place of the international arbitration. In this way,

each year, the Paris Arbitration Week takes place in the center of Paris. This institution organizes a

yearly week of events aimed at connecting, whether in person or virtually, the worldwide community

of arbitration practitioners.1

Since 60 years, the PAW is THE event of the year for all arbitration practitioners, especially because

it's an official event, organized by the ICC (International Chamber of Commerce), the Paris

Arbitration, the French Comity of the Arbitration and by the Association for Arbitration. This is the

reason why more than 6 300 arbitrations practitioners as well as professors, arbitrators, students,

specialised lawyers of all around the world come each yeah to this hub.2

Historically, the arbitration has always been present in french civilisation, already in greek and roman

antiquity. Many professions chose to be submitted to an arbitrator that they knew with known

penalties before the conclusion of the contract. In the Middle Ages, arbitration was the main way to

solve disputes between the corporations, such as the French State has created institutionnal Tribunals,

founded on arbitration law.3The arbitration law has evolved until the 60's. For this years, France has

been opened on the world by the phenomenon of globalization. Globalization caused a large increase

of the economic and international relationships. To solve possible disputes, economics partners have

begun to create arbitration clauses that they added in the contracts. Today, the arbitration law is very

used by all the economics actors, because arbitration has many advantages as well as the discretion

of the disputes, the knowing of the sanctions that could be pronounced by the Arbitrator if he's seidez,

etc.

On the history of distinction between domestic arbitration and international arbitration, we

1
Main website page of the PAW, linked at the URL : https://parisarbitrationweek.com
2
Calendar of the Paris Arbitration Week 2022 linked at the URL : https://parisarbitrationweek.com/calendar/?print-
posts=pdf
3
Introduction au droit de l'arbitrage interne et international, II – Historique de l'arbitrage, Lextenso, linked at the URL :
https://www.labase-lextenso.fr/ouvrage/9782275071831-13
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have to specify that this distinction does not exists in all countries, but in some, whose France. This

distinction is always here, in 2022 for two main reasons. The first reason is that domestic arbitration

has always been considered by France like an exception to state justice, contrary to international

arbitration, which is the « usual mode of dispute resolutions » according to the case-law of the « Cour

de cassation »4.

By study international and domestic arbitration in the french law, we have to interrogate us about the

definition of both types of arbitration, but also talk about the applicable law to each type.

In this way, we starts with the definition of international and domestic arbitration by the french law,

particularly the criters of each notion, to characterized them (I). The second part of the study will be

devoted at the applicable law to each notion (II).

I – The definition of international and domestic arbitration by the french law

The French Civil Procedure Code talks about the rules applicables to arbitration in articles 1442 until

1527. The French Lawmaker makes the distinction between domestic arbitration, ruled by articles

1442 until 1503 and international arbitration ruled by articles 1504 until 1527. So first, we start to

study the domestic arbitration (A) and secondly, the international arbitration (B).

A – The definition of domestic arbitration

The article 1442 of French CPC establishes that the arbitration convention can be either an arbitration

clause in the contract concluded between the Parties, or be a independant contract, a second contract

concluded by the Parties. In this contract or clause, the Parties must write they choose to submit all

disputes between them at a designed arbitrator. The Parties can also provide to design some arbitrators

grouped in one Tribunal : the arbitral Tribunal.

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Tribunal judiciaire de PARIS, 26 janvier 2021, arrêt VIDATEL
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The articles 1487 and 1488 of French CPC specifies that the Parties have to sue other before a national

Judge to ask the exequatur of the arbitrator's sentence. The proceeding of exequatur permits to have

forced execution of the arbitrator's sentence if one Party does not respect her.

To conclude, the French CPC defines the domestic arbitration as an arbitration which is chosen by

both Parties in their contract by the arbitration clause or in an independant contract.

B – The definition of international arbitration

Next to the dispositions applicable to domestic arbitration, the French CPC establishes, at articles

1504 until 1537 the rules applicables to international arbitration. First, the article 1504 defines this

type of arbitration as : « the arbitration which questionned the interests of international trade ». If

the interests of international trade are questioned, the arbitration changes of applicable law. In fact,

the article 1505 of French CPC established that a « Juge d'appui », in fact the President of the Tribunal

of Paris, is designed and has competence to rule on the questions of obtention of precautionary

measure, constitution of Arbitration Tribunal or investigatory measure.

Contrary to domestic arbitration, arbitration clause or convention of arbitration can be oral (article

1507). The french Lawmaker considered that both Parties in international trade are informed of effects

of arbitration by the experience and knowledges they have (incompetence of national jurisdictions).

After having exposed the main differences done by french law between domestic and international

arbitration, we study in a second part the applicable law to each type of arbitration.

II – The applicable law to international and domestic arbitration

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As the first part of the study, we will first talk about the applicable law to domestic arbitration (A)

and secondly, the applicable law to international arbitration (B).

A - The applicable law to domestic arbitration

As we have written in the introduction, the domestic arbitration is seen by the French State like an

exception to justice state. In this way, and as all exceptions, the domestic arbitration has to answer to

very strict conditions to be apply.

On the form of the arbitration clause or convention of arbitration, the domestic arbitration imposes to

the Parties to have an agreement which has to be followed up in writing. Before a Decree of 2011,

the sentences in domestic arbitration could be challenged before the Appeal Court, as the traditional

litigation in civil law ; contrary to international arbitration (annulment appeal before the Paris

Tribunal). For the Decree of 2011, both types of arbitration are submitted to annulment appeal.

In the same way, only for years 2000, the french case-law considered that arbitration clause in

domestic arbitration are as autonomous as in international law. Before 2000, only arbitration clause

in international arbitration were considered autonomous.

B – The applicable law to international arbitration

Contrary to domestic arbitration, the international arbitration is a lot more liberal because it's the usual

mode of dispute resolution. This is the reason why the resort to arbitration is such more granted than

in domestic arbitration.

In international arbitration, the applicable law is very smooth. Thus, there is no necessity fort Parties

to sue the other Party befort a French Tribunal to have the exequatur of the sentence, because the

sentence is automatically entered into force, at the date of the decision of the Arbitration. The French

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Tribunal can only refuse to apply the sentence if the decision is not manifestly contrary to the public

international order.

For many years, it has to be specify that both types of arbitration, domestic and international

arbitration have a closer relationship in french law. In fact, the growth of arbitration in all domains,

yet the international trade, has led the french lawmaker to be smoother and liberal in the domestic

arbitration (decree of 2011).