Clues to Construing the New French Arbitration Law — An ICC Perspective on Procedural Efficiency, Good Faith, and Independence

Abstract

The new French arbitration law has been celebrated as a modern, if not post-modern, law. Two provisions of the law have particularly attracted the authors' curiosity. Article 1464 requires both arbitrators and parties to conduct the arbitration proceedings "efficiently" and in "good faith." But what does this dual obligation actually entail and how will it affect parties, counsel and arbitrators? Article 1456 codifies the obligation, previously established by French case law, that an arbitrator must disclose any facts affecting his or her independence or impartiality. In light of the current debate on arbitrator independence and disclosure in France (and beyond), triggered in part by the Tecnimont decision, what is the scope of disclosure pursuant to Article 1456? An ICC perspective provides answers to these questions. Indeed, the ICC is regularly confronted with exactly these issues: allegations of delay, misconduct and lack of full disclosure impacting an arbitrator's independence. This article discusses pertinent ICC cases, which offer a possible interpretation of these two provisions.