French Judicial Attitudes Toward International Arbitration

Abstract

FRENCH INTERNATIONAL arbitration law is codified. Its basic rules are set out in the Decree of 12 May 1981, which vests the power to review awards in international arbitrations, both in France and abroad in the Courts of Appeals—subject to final review by the Court of Cassation. International arbitration is defined as including any arbitration which ‘affects interests in international trade’. The French case law has broadly construed this statutory definition by holding that the international character of an arbitration proceeding is determined – excluding any criteria involving the parties' nationality or the governing law – by the international character of the economic transaction in question, which involves a cross-border flow of goods, persons or services. The statute's underlying approach is to provide ‘expedited' review of the award, focussing solely on whether it is internationally lawful. The term ‘international’ is important because, as we shall see, it rules out any resort whatsoever to either French municipal law or any foreign municipal law—for the most part, in any event. The key question therefore becomes: On the basis of which criteria will an arbitral award in an international case be deemed ‘internationally lawful’ so that it can be recognized and enforced in France? Here, we must consider the fundamental concept of the dual nature of arbitration as an institution—a concept which dominates the field of arbitration: it is at the same time both contractual , because of its origin (the agreement binding the parties) and jurisdictional , because of the way in which it is expressed (arbitral award, decision on jurisdictional issues—decision by private judicial authority). The purpose of having an arbitral award reviewed by a higher court is accordingly to ensure that these rules have been strictly compiled with by ensuring both that the arbitration is based upon a valid arbitral …