Arbitration Reform: A Perspective from France

Prior to Decree 2011, French arbitration law had stayed the same for around 30 years. Now, with the goal of reinforcing the efficiency of its arbitral legislative framework, France is on the precipice of another major reform. This article highlights the key proposals of that reform.

The last major update to French arbitration law occurred in 2011 with the passing of Decree No. 2011-48 of 13 January 2011 (“Decree 2011”). The aim was to make French arbitration law more attractive to international users, by enhancing the efficiency of arbitral proceedings, simplifying the enforcement of awards, and refining the rules for challenging awards. Significantly, Decree 2011 codified principles established through case law and applied to both domestic and international arbitration.

Reform Initiative Launched to Modernize French Arbitration Law

In November 2024, the French Ministry of Justice tasked a working group with reviewing and modernizing the legal framework governing both domestic and international arbitration in France. The current reform proposal is expected to include amendments to the Code of Civil Procedure, which contains the relevant provisions for governing domestic and international arbitration in France (currently Articles 1442 to Articles 1527).

The working group is mandated to ensure that French arbitration law remains competitive, especially given the growing competition from neighbouring jurisdictions like the UK and Switzerland, which are also pursuing their own arbitration law reforms. The initiative seeks to incorporate recent case law developments, as well as to introduce innovative provisions. The working group is co-chaired by Thomas Clay, an arbitrator and professor, and François Ancel, a judge of the French Court of Cassation; it comprises a multidisciplinary panel of legal experts, including renowned practitioners, judges, academics, and representatives of Paris-based arbitral institutions. A report outlining the proposed reforms is expected by March 2025.

Reinforcing France’s Attractiveness as a Venue for International Disputes

This initiative is part of the French Ministry of Justice’s broader strategy to enhance France’s and especially Paris’s attractiveness as a venue for international commercial disputes. As part of this strategy, in 2017, the Ministry created specialized chambers for international commercial disputes. Two international chambers were set up in 2018: the International Commercial Chamber of the Paris Court of Appeal (the “ICCPCA”) and the International Chamber of the Paris Commercial Court (the “ICPCC”). These chambers cater to international needs by featuring English-speaking judges, accepting submissions of evidence in English, and employing procedural tools common in international arbitration (e.g. cross-examination of witnesses and experts, document production requests or binding procedural calendars), which derogate from traditional French civil procedure.

In just five years, the ICCPCA has rendered 440 decisions, and the ICPCC had handled more than 200 cases involving at least one foreign party. The ICCPCA also handles challenges to and enforcement of arbitral awards. It is expected to become the exclusive venue for appeals related to international arbitration awards by June 2025. This development should lead to more consistent case law that will increase the predictability of judicial decisions and as a result, strengthen the attractiveness of Paris as a seat of arbitration.

Likely Focus Areas of the Reform: What Could be Expected?

While the working group has not yet released any detailed agenda, several key issues are likely to feature in the reform as follows:

• Confidentiality in international arbitration: the current law provides a presumption of confidentiality for domestic arbitral proceedings (Article 1464, paragraph 4, of the Code of Civil Procedure). However, there is no such provision for international arbitration (i.e. the parties must expressly agree to confidentiality).
• Third-party opposition against international arbitral awards: there is a disparity between the available remedies against an exequatur order for domestic and international awards. Third-party opposition is available against orders of exequatur for domestic awards but not for international awards.
• Employment contract and arbitration clauses: under Article L. 1411-4 of the French Labour Code, disputes arising from employment contracts fall under the exclusive jurisdiction of labour courts. In practice, this provision does not extend to international employment contracts containing arbitration clauses, which are considered valid but remain unenforceable against employees. This means that employees themselves retain the option to choose between arbitration and litigation. Accordingly, this provision could be amended to specify that arbitration clauses are not among the provisions deemed contrary to the exclusive jurisdiction of labour courts.
• Arbitrability of specific matters: articles 2059 to 2061 of the French Civil Code govern arbitrability and specify matters that are excluded from arbitration (e.g. divorce and judicial separation of spouses, disputes concerning public entities and public policy). These provisions also specify areas where an arbitration clause can only be enforced against a party that has explicitly consented to arbitration in its professional capacity (e.g. consumer and employment agreements). As French courts have ruled that these provisions do not apply to international arbitration, they have become unnecessary in the context of international disputes. Accordingly, one may expect the removal of the provisions of Articles 2059 to 2061 of the Civil Code, which would further enhance the attractiveness of French arbitration law by eliminating barriers to arbitration.

Further to the above, there is a convoluted process to follow when international arbitration involves public entities in France. By way of reminder, the French judiciary is divided between administrative courts (which deal with public or administrative matters) and judicial courts (which deal with the remaining matters such as Civil Law and Criminal Law). These courts do not share the same view about the arbitrability of international disputes involving a public entity or an administrative contract. Also, according to the French Tribunal des conflits (which is the court tasked with settling disputes between administrative and judicial courts when it comes to their areas of jurisdiction), appeals against arbitration awards that involve French public entities or contracts governed by French administrative law must be submitted to the administrative courts. French scholars mostly share the opposite view: they argue that judicial courts should be competent to hear challenges related to international arbitration awards. This dual system is difficult to follow for foreign users and practitioners. We consider that this period of reform would be an opportunity to clarify the navigation of disputes in this area.

Conclusion

Although the details are unknown, the legal framework for domestic and international arbitration in France is about to change. We have highlighted some potential amendments that would improve the efficiency and accessibility of French arbitration law for foreign users especially, but such amendments could also, arguably, bring further alignment between the governance of domestic and international arbitration in French arbitration law which may be, perhaps, a welcome development for practitioners.

This article was originally published on Daily Jus on Friday 7 February, with thanks to Jus Mundi & Jus Connect.