The Arbitral Tribunal in French Arbitration

Composition of the Arbitral Tribunal

French arbitration law, codified in Articles 1442 to 1527 of the Code de procédure civile (Book IV, Titles I and II), gives the parties broad freedom to determine the composition of the arbitral tribunal. Article 1450 provides that the tribunal must be composed of an uneven number of arbitrators. Where the parties provide for an even number, an additional arbitrator must be appointed.

The default rule is that the tribunal consists of a single arbitrator, unless the parties agree otherwise. The parties may provide for three arbitrators, each party appointing one arbitrator and the two party-appointed arbitrators appointing the presiding arbitrator. Joint arbitration clauses providing for a tribunal of three arbitrators are typical in international construction and investment arbitration seated in France.

The Cour de cassation in Cass. civ. 1re, 6 février 2019 confirmed that the parties may agree on the qualifications required of arbitrators. Where the arbitration clause requires arbitrators to possess certain professional qualifications (e.g., expertise in construction law), an arbitrator lacking the required qualifications may be challenged.

Appointment of Arbitrators

The appointment of arbitrators is governed by Article 1451 of the Code de procédure civile. The parties may appoint arbitrators directly in the arbitration clause or may provide a mechanism for appointment (e.g., nomination by a named person or institution).

Where the parties fail to agree on the appointment of a sole arbitrator, or where one party fails to appoint its arbitrator, the juge d’appui (support judge) of the Tribunal judiciaire de Paris may make the appointment under Article 1452. The juge d’appui is the president of the tribunal judiciaire de Paris for domestic arbitration and may be the president of the tribunal judiciaire designated in the arbitration clause.

The juge d’appui’s power to appoint arbitrators is discretionary. In CA Paris, 12 janvier 2021, the Cour d’appel de Paris held that the juge d’appui must have regard to the qualifications required by the parties and to the need for impartiality and independence in the tribunal.

Challenge and Replacement of Arbitrators

Arbitrators may be challenged where circumstances exist that give rise to justifiable doubts as to their impartiality or independence. Article 1456 of the Code de procédure civile codifies this principle, providing that the arbitrator must disclose any circumstances that might affect their independence or impartiality.

The challenge procedure is governed by Article 1457. The challenging party must submit the challenge to the arbitrator and to the other party within one month of learning of the grounds for challenge. If the challenged arbitrator does not resign, the challenge is resolved by the arbitral institution (in institutional arbitration) or by the juge d’appui (in ad hoc arbitration).

Arbitrators may be replaced where they die, resign, are successfully challenged, or are removed by agreement of the parties. Article 1458 provides that the replacement arbitrator is appointed by the same procedure as the original arbitrator. The reconstituted tribunal may decide, after hearing the parties, whether to repeat any part of the proceedings conducted before the replaced arbitrator.

In CA Paris, 10 mars 2020, the Cour d’appel de Paris held that the failure of an arbitrator to disclose a close professional relationship with a party’s counsel constituted a justifiable ground for challenge, and the resulting award was annulled.

Competence-Competence

The principle of competence-competence is codified in Article 1465 of the Code de procédure civile, which provides that the arbitral tribunal has the exclusive power to rule on its own jurisdiction, including objections relating to the validity or scope of the arbitration agreement.

This principle has two dimensions in French law. First, the arbitral tribunal must rule on its own jurisdiction before the state courts may consider the issue. Second, the arbitral tribunal’s decision on jurisdiction is subject to review by the Cour d’appel de Paris upon an action to set aside the award.

The Cour de cassation in Cass. civ. 1re, 20 décembre 2017 (the Tulane University case) confirmed the primacy of the arbitral tribunal in determining its own jurisdiction. The court held that the juge d’appui may not rule on the validity of the arbitration agreement when a tribunal has already been constituted; only the tribunal itself may do so.

However, the competence-competence principle is limited by the effet négatif de la competence-competence (negative effect), under Article 1448 of the Code de procédure civile. Where the arbitration agreement is manifestly void or manifestly inapplicable, the state court may declare that it lacks jurisdiction without referring the matter to the arbitral tribunal.

Powers of the Arbitral Tribunal

The arbitral tribunal exercises broad procedural powers. Article 1464 of the Code de procédure civile provides that the tribunal defines the procedure, establishes a procedural timetable, and conducts the proceedings, subject to the mandatory rules of French law and the parties’ agreement.

The tribunal’s powers include: ordering provisional or conservatory measures (Article 1468); hearing witnesses; ordering the production of documents; appointing technical experts; and conducting site visits. In international arbitration, the tribunal also has the power to rule on its own jurisdiction, to order interim measures, and to adapt the procedure to the circumstances of the case.

Article 1468 empowers the arbitral tribunal to order provisional or conservatory measures, including the preservation of assets or evidence. The tribunal may make its order subject to security. The Cour de cassation in Cass. civ. 1re, 12 septembre 2019 confirmed that the arbitral tribunal’s power to order provisional measures extends to mesures d’instruction in futurum (pre-trial evidentiary measures) under Article 145.

Duties of the Arbitral Tribunal

French law imposes specific duties on arbitrators. The duty of independence and impartiality is the most fundamental, grounded in Articles 1456 and 1457 of the Code de procédure civile. The arbitrator must be and remain independent of the parties throughout the proceedings.

The duty of disclosure requires the arbitrator to disclose any circumstances that might affect their independence or impartiality. This duty is continuing and extends throughout the proceedings. Failure to disclose is a ground for challenge and may justify the annulment of the award.

The duty to act diligently requires the arbitrator to conduct the proceedings efficiently and to render the award within the time limit agreed by the parties or fixed by the institution. The Cour d’appel de Paris in CA Paris, 5 mars 2019 held that an arbitrator who fails to render an award within the statutory time limit (six months for domestic arbitration, extendable) may be held liable for damages.

Ad Hoc vs Institutional Arbitration

French law recognises both arbitrage ad hoc and arbitrage institutionnel. In ad hoc arbitration, the parties and the arbitral tribunal manage the procedure without the involvement of an arbitral institution. The juge d’appui plays a more active role in ad hoc arbitration, resolving procedural deadlocks and appointing arbitrators where the parties fail to agree.

Institutional arbitration is administered by specialised bodies such as the Chambre Arbitrale Internationale de Paris, the Centre de Médiation et d’Arbitrage de Paris, or international institutions such as the ICC International Court of Arbitration. The institution provides procedural support, appoints arbitrators where necessary, reviews draft awards, and administers the costs of arbitration.

The choice between ad hoc and institutional arbitration depends on the complexity of the dispute, the amount in controversy, and the preferences of the parties. Institutional arbitration offers greater procedural structure and institutional oversight, while ad hoc arbitration offers lower costs and greater flexibility.

In CA Paris, 15 juin 2021, the Cour d’appel de Paris confirmed that an award rendered in ad hoc arbitration under the UNCITRAL Rules is enforceable in France, provided that the mandatory requirements of the Code de procédure civile are satisfied.

Liability of Arbitrators

The liability of arbitrators in French law is governed by Article 1450-1 of the Code de procédure civile, introduced by the Loi n° 2019-222 of 23 March 2019 (the Loi de programmation 2018-2022 et de réforme pour la justice). The arbitrator’s liability is engaged only in cases of fraud, gross misconduct, or denial of justice.

The limitation of liability reflects the quasi-judicial function of the arbitrator and the need to protect arbitrators from vexatious claims. The Cour de cassation in Cass. civ. 1re, 15 janvier 2020 held that an error of judgment, even a manifest one, does not constitute gross misconduct and does not engage the arbitrator’s liability.

Conclusion

The arbitral tribunal in French arbitration enjoys broad powers to determine its own jurisdiction, manage proceedings, and order provisional measures. The principle of competence-competence ensures that the tribunal resolves jurisdictional objections in the first instance. The duties of independence, impartiality, disclosure, and diligence ensure the integrity of the arbitral process. The choice between ad hoc and institutional arbitration offers flexibility while the liability of arbitrators is appropriately limited to protect judicial independence.