International arbitration
What is international arbitration?
International arbitration is a method of resolving private disputes in which the parties agree to submit their case to one or more arbitrators, rather than to state courts.
It differs from domestic arbitration when a foreign element is involved, such as:
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Parties with different nationalities or domiciles
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A contract executed in another country
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Arbitration governed by rules that are not exclusively French
Under French law, international arbitration is primarily governed by Articles 1504 to 1527 of the Code of Civil Procedure. It offers greater contractual freedom than domestic arbitration.
What are the key benefits of international arbitration?
International arbitration is preferred by economic actors for several key reasons:
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Neutrality: It eliminates the risk of bias associated with national courts.
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Flexibility: Parties are free to choose the applicable rules (e.g., national law, ICC, SIAC, LCIA, etc.).
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Confidentiality: Unlike public court proceedings, arbitration guarantees discretion and privacy.
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International Enforcement of Awards: Thanks to the 1958 New York Convention, arbitral awards are enforceable in over 160 countries.
Is international arbitration compulsory?
No, international arbitration is never imposed by law; it is always based on the mutual agreement of the parties.
It may be agreed upon:
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Before any dispute arises, through an arbitration clause inserted into a contract
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After a dispute has arisen, through a separate arbitration agreement signed by the parties
The parties must clearly express their intent to resolve disputes through arbitration, particularly to avoid any challenge to the jurisdiction of the arbitral tribunal.
What is an arbitration clause in international arbitration?
The arbitration clause is a contractual provision through which the parties agree, before any dispute arises, to submit any future conflict to arbitration rather than to state courts.
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It must be drafted with care to avoid future challenges.
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The clause should specify key elements such as the applicable rules (arbitral institution), the seat of arbitration, the language of the proceedings, and the number of arbitrators.
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Unlike domestic arbitration, even a poorly drafted clause may be upheld in international arbitration, thanks to the principle of effet utile and the overarching duty of good faith.
What is an arbitration agreement in international arbitration?
An arbitration agreement is a contract concluded after a dispute has arisen, through which the parties agree to submit their conflict to an arbitral tribunal.
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It is commonly used when the original contract did not contain an arbitration clause.
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Its interpretation is often guided by the effet utile principle, which seeks to uphold and give effect to the parties’ intent.
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Such agreements are widely accepted, as they reflect a clear and mutual desire to resolve the dispute through arbitration.
What does the principle of effet utile mean in international arbitration?
Effet utile is a principle under which an arbitration clause or agreement must be interpreted in a way that favors its effectiveness and application, rather than its invalidation.
This principle is widely applied by courts and arbitral tribunals to prevent technical or drafting imperfections from obstructing the arbitration process. It stands in opposition to overly formalistic interpretations that would undermine the scope and purpose of the arbitration agreement.
However, the principle of effet utile cannot override the fundamental requirement of mutual consent between the parties.
What is implied consent in international arbitration?
Implied consent refers to a situation in which a party is deemed to have accepted arbitration not through an explicit declaration, but through its conduct — for example, by participating in the proceedings.
Many courts recognize that a party’s participation in arbitration without raising objections constitutes implied consent.
However, this principle must not be applied in a discriminatory manner: if one party may rely on implied consent to enforce an arbitration clause, the same standard must apply equally to all parties.
What is the value of an international arbitral award?
An international arbitral award is binding on the parties. However, in order to be enforced in a given country, it must generally undergo an exequatur procedure — unless the parties comply with it voluntarily.
In many jurisdictions, including France, exequatur judges do not review the merits of the case, but merely verify that the award complies with fundamental principles of international public policy.
What is exequatur in international arbitration?
Exequatur is the legal procedure by which an international arbitral award is made enforceable in a given state.
In France and in over 160 countries, this procedure is facilitated by the 1958 New York Convention.
A national judge will grant exequatur unless the award is manifestly contrary to international public policy or suffers from serious procedural defects (e.g., lack of party consent, violation of due process, etc.).
Which judge should be contacted for a request for exequatur in international arbitration?
In France, the Paris Judicial Court has exclusive first-instance jurisdiction to hear applications for the enforcement (exequatur) of international arbitral awards rendered abroad.
Which court has jurisdiction over an application to annul an international arbitral award?
An application to set aside an international arbitral award must be filed with the Court of Appeal at the seat of arbitration.
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If the arbitration took place in France, the Paris Court of Appeal has jurisdiction.
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If the award was rendered abroad but enforcement (exequatur) was granted in France, the Court of Appeal that issued the enforcement order may be seized.
