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Report To The Prime Minister Relating To Decree No. 2011-48, January 13, 2011 On Reform Of Arbitration

Original Language Title: Rapport au Premier ministre relatif au décret n° 2011-48 du 13 janvier 2011 portant réforme de l'arbitrage

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JORF no.0011 of 14 January 2011 page 773
text No. 8



Report to the Prime Minister on Decree No. 2011-48 of 13 January 2011 on arbitration reform

NOR: JUSC1025421P ELI: https://www.legifrance.gouv.fr/eli/rapport/2011/1/14/JUSC1025421P/jo/texte



Reform of arbitration law, introduced by the Decrees No. 80-354 of 14 May 1980 and 81-500 of 12 May 1981, was commended for simplifying the arbitral proceedings and improving its effectiveness, including allowing the State judge to intervene in the arbitral proceedings in order to ensure the smooth conduct of the proceedings and the fair trial.
The innovative nature of the reform also resided in the admission of the autonomy of the arbitration clause in relation to the rest of the contract (art. 1446 Civil Procedure Code) as well as in the assertion of the principle of "competent jurisdiction", according to which only the arbitrator is competent to judge his jurisdiction (art. 1466).
Thanks to this reform, the law of French arbitration has been imposed in the international field by its originality, both in terms of its flexibility and legal security.
However, after thirty years of practice, it became necessary to reform this text, in order, on the one hand, to consolidate some of the achievements of the jurisprudence that has developed on this basis, on the other hand, to add complements to this text in order to improve its effectiveness and, finally, to incorporate provisions inspired by certain foreign rights whose practice has proved usefulness.
The purpose of this decree is to reform both internal arbitration and international arbitration.
Article 1 provides that Articles 1508 to 1519 of the Civil Procedure Code shall become Articles 1570 to 1582 respectively. The purpose of this article is to take into account the new numbering of articles relating to internal and international arbitration, while reserving a number of articles in the case that provisions would be inserted in Book V of the Civil Procedure Code, currently vacant.
Article 2 amends in its entirety Book IV of the Civil Procedure Code relating to arbitration and provides for two titles, one reserved for internal arbitration, the other to international arbitration.
Chapter I of Title I is intended to define the arbitration agreement and regulate its legal regime.
Sections 1442 to 1445 are intended to define the arbitration agreement and determine the conditions of its validity.
In this context, it should be noted that the decree unifies the legal regime of the arbitration clause and the arbitration agreement, encompassing them within the same definition (Article 1442), while the former provisions of the Civil Procedure Code gave these conventions separate regimes. As part of this simplification, the decree maintains the requirement that these conventions must be written in penalty of nullity, while taking into account the jurisprudence under which the arbitration agreement may result from an exchange of writings or a document referred to in the main convention (Article 1443). The decree also enshrines the jurisprudence, now the majority, under which the arbitration clause is intended to apply within the framework of contract groups, as long as the contracts in question have a complementary character (Cass. Com., March 5, 1991) or the parties agreed to execute the agreement, including the arbitration clause (Cass. 1st civ., 25 June 1991) (art. 1442, para. 2). Finally, with the same aim of simplification and ease of formalism, the decree no longer punishes by nullity the fact that the parties did not provide for in the arbitration agreement to designate the arbitrator(s) or the terms of their designation. The absence of such a forecast is the subject of additional provisions to which section 1444 refers.
Without amendment to the previous law, Article 1445 provides that the compromise shall, as a matter of nullity, determine the subject matter of the dispute and Article 1446 that the parties may compromise even in a proceeding already before a court.
Article 1447 is intended to reaffirm the principle of the autonomy of the arbitration agreement in relation to the contract to which it relates, taking into account the jurisprudence under which the arbitration clause is not affected by the inefficiency of the contract, i.e., by its inexistence (in the event of an obstacle error), by its caducity, resolution or termination. This section reproduces the earlier wording that when the arbitration agreement is null, it is deemed to be unwritten.
Sections 1448 and 1449 are intended to determine the limits in which state courts may intervene, prior to the establishment of the arbitral tribunal, when the parties have agreed to an arbitration. Article 1448 clarifies the drafting of the former article 1458, without changing the substance of it. Under this Article, State courts may not be aware of the dispute under the arbitration agreement unless the arbitral tribunal is not yet seized and the arbitration agreement is manifestly null or manifestly inapplicable. This article thus dedicates the negative effect of the principle of competence-competence, whose positive effect is recalled in article 1465. In order to ensure full effectiveness in section 1448, its last paragraph provides that any contrary stipulation is deemed not written. Article 1449 deals with an established case law, under which the parties may refer to the State judge on the basis of Article 145 and, in the event of an emergency, apply it in order to obtain interim or provisional measures.
Chapter II, reserved for the arbitral tribunal, is intended to provide for provisions relating to the constitution and composition of the arbitral tribunal as well as to the procedure for the recusal of arbitrators. This chapter finally determines the procedure for the intervention of the state judge within this framework and the jurisdiction of the judge to hear such disputes.
On this occasion, the notion of "support judge", initially devoted to doctrine following the Decree No. 80-354 of 14 May 1980 on arbitration and intended to be incorporated into the new Code of Civil Procedure, and then expressly adopted by the jurisprudence from 2005, has been adopted by this Decree. This evolution thus enshrines the originality of the French arbitral procedure: in the matter of arbitral proceedings the state judge intervenes to establish the authority of the arbitral tribunal, without any imperium and to allow the parties to conduct this procedure effectively, in accordance with the principles of loyalty and equality of arms. As in the past, the supporting judge is the president of the Court of Grand Instance, the president of the Court of Commerce who is only acting within strictly determined limits.
Articles 1450 to 1455 govern the constitution and composition of the arbitral tribunal. To the extent that the decree no longer provides that arbitration agreements shall, in a matter of nullity, designate the arbitrator(s) or the terms of their designation, such articles shall provide for the additional provisions of the will to give the arbitration agreement all its effectiveness.
Article 1450 takes the rule enacted by former section 1451, which provides that the dispute submitted to arbitration may only be decided by a natural person enjoying the full exercise of his or her rights, but the organization of the arbitration may be entrusted to a legal person.
Article 1451 reformulates the provisions of former articles 1453 and 1454 without changing their substance, while providing for a period of time to allow the expeditious constitution of the arbitral tribunal. It is in the same interest in the effectiveness and speed of constitution of the arbitral tribunal that Article 1452 resolves the difficulties relating to the establishment of the arbitral tribunal, as constituted by one or three arbitrators. Article 1453 is likely to resolve the difficulties in the constitution of the arbitral tribunal where the dispute precludes more than two parties. In this case, the person responsible for the arbitration, or, if not, the supporting judge shall designate the arbitrator(s). Article 1454 is intended to address the residual difficulties of the constitution or composition of the arbitral tribunal, taking into account the solution as previously described: in the absence of agreement of the parties, the dispute shall be settled by the person responsible for organizing the arbitration, or, if not, decided by the supporting judge.
Article 1455 reproduces the wording, slightly modified, of former article 1444, paragraph 3. The purpose of this article is to allow the supporting judge not to grant an application relating to the establishment of an arbitral tribunal where he finds that the arbitration agreement is manifestly null or manifestly inapplicable.
Sections 1456 to 1458 simplify the rules relating to the recusal, incapacity and resignation of the arbitrator, particularly at the time of the establishment of the arbitral tribunal. The first paragraph of Article 1456, such as former Article 1452, provides that the court shall be constituted when the arbitrator(s) have accepted the assignment entrusted to them. He states that on that date the court is seized of the dispute. The second paragraph of this article imposes the obligation on the arbitrator to disclose, as soon as he is aware of it, any circumstance that may affect his independence or impartiality, both prior to acceptance of his mission and later. In addition, unlike former section 1452, which provided that the arbitrator who assumed in his person a cause of recusal could only accept his or her mission with the agreement of the parties, the third paragraph of section 1456 provides that in the event of a dispute over the maintenance of the arbitrator, the difficulty is resolved by the person in charge of the arbitration, or, in the absence, decided by the supporting judge. Articles 1457 and 1458 clarify the wording of the former articles 1462 and 1463: the arbitrator who accepted the mission entrusted to him must continue it until the end of the letter unless he justifies an impediment or a legitimate cause of forbearance or resignation. Any dispute relating to the reality of the ground invoked is settled by the person responsible for organizing the arbitration (which is new) or, failing that, by the supporting judge seized in the month following the incapacity, forbearance or resignation (Article 1457). This is the same mechanism to be applied in the matter of revocation of the arbitrator and in the absence of a unanimous agreement of the parties on this matter (Article 1458).
Sections 1459 and 1460 are intended to determine the procedures for the referral and intervention of the supporting judge when the supporting judge is, inter alia, seized with an application relating to a difficulty in establishing the arbitral tribunal. These articles are inspired by the formulation of former article 1457, while improving readability and making certain modifications. Thus, as in the state of previous law, the President of the Court of Commerce remains competent to hear all disputes relating to the constitution or composition of the arbitral tribunal, where the parties have expressly agreed in the arbitration agreement (Article 1459, para. 2). However, considering that the president of the High Court was, as a supporting judge, more likely to resolve strictly procedural difficulties, the decree proposes to confer on the sole president of the High Court the disputes relating to the extension of the arbitration period (new article 1463 and former article 1456).
Accordingly, the President of the High Court is the common law support judge of the arbitral proceedings, with powers extended in the context of the reform. It shall be competent to rule on disputes relating to the constitution and composition of the arbitral tribunal, on disputes relating to the recusal, forbearance and resignation of the arbitrators and those relating to the extension of the arbitral proceedings.
Finally, section 1461, as in former section 1459, provides that any stipulation contrary to the rules laid down in chapter II shall be deemed not in writing. Two details should be provided on this article. In the first place, the term "stipulation" used by section 1461 must be interpreted in a broad sense (as in articles 1448, 1473 and 1491): it is, in fact, not only of the agreements concluded between the parties but also of the provisions contained in the arbitration regulations, which, by the effect of the will of the parties, have a contractual character and are, therefore, assimilated by the provisions of the arbitration rules. Secondly, this article expressly provides that it may be derogated from the provisions of the first paragraph of Article 1456. This exception is intended to allow parties to delay the date of referral of the arbitral tribunal (and therefore the point of departure of the arbitration period) at the time that the arbitral tribunal is in a position to rule on the dispute. Thus, the parties may, by treaty or by an act of adhesion to an arbitration settlement, decide that the court will, for example, only be seized from the date of receipt by the arbitral tribunal of all arbitration files.
Chapter III is intended to govern the arbitral proceedings. The amendments are intended either to dedicate well-established jurisprudence, or to establish the authority of the arbitral tribunal, or to allow the state judge, alone with imperium, to intervene in the proceedings to ensure that authority.
Sections 1462 to 1464 do not make any changes to the earlier rule of law, since these articles reflect the formulation, sometimes slightly modified, of former articles 1445, 1456 and 1460 respectively. However, it should be noted, on the one hand, that the point of departure of the time limit of the arbitral proceedings begins to run from the referral of the arbitral tribunal, that is, normally, beginning with its constitution (Article 1456) and, on the other hand, that the fourth paragraph of Article 1464 incorporates the principle of confidentiality of the arbitral proceedings, a principle that constitutes a major feature of this procedure in domestic law.
Article 1465 clearly refers to the positive effect of the so-called "competent jurisdiction" principle, referred to in former section 1466 and under which the arbitral tribunal is solely competent to rule on disputes over its jurisdiction. Article 1466 enshrines the principle of estoppel, already recognized by the jurisprudence. This concept, borrowed from Anglo-Saxon law, is a procedural exception intended to sanction, in the name of good faith, the contradictions in the behaviours of a party, being linked by its earlier behaviour and, therefore, prevented from asserting a new claim.
Articles 1467 and 1468 are intended to establish the authority of the arbitral tribunal as part of the proceedings it conducts. For this purpose, article 1467 takes, by slightly amending them, the provisions of former article 1461, while devoting a case law under which the arbitral tribunal may enjoin a party, if it is not necessary, to produce evidence in the proceedings. This provision is the provision in section 1468, under which the arbitral tribunal may order the parties to any interim or interim measures that it considers appropriate, except for pretrial and judicial seizures, which fall within the exclusive jurisdiction of the State judge.
Article 1469 takes into account the limits of the powers of the arbitral tribunal by allowing the State judge to order the production of documents held by third parties or conventions in which the parties to the arbitration would not have been parties. To the extent that the implementation of this article is technical and procedural, it has been made a choice to give jurisdiction to the sole president of the High Court to hear such requests, being specified that the President will be seized by a party to the arbitration, at the invitation of the arbitral tribunal. Furthermore, to the extent that the President of the Court of Grand Instance intervenes here in the context of measures sought against third parties in the arbitral proceedings, it was made choice not to confer such power on the judge of support of the arbitral proceedings, but to the president of the Court of Grand Instance territorially competent under the rules of common law.
Section 1470 incorporates the provisions of former section 1467: it is now indicated that in the event of a false incident, it is applied to section 313. In other words, in this case, the arbitral tribunal is exactly in the same situation as that of any State jurisdiction other than the Court of Grand Instance: if the incident of false is raised before the arbitral tribunal, the arbitral tribunal, if it cannot rule without taking into account the authentic act, is obliged to suspend to adjudicate until the judgment ruling on the application of falsehood.
New sections 1471 to 1475, relating to the interruption and suspension of the arbitral proceedings, reflect the provisions of former section 1465, while developing it, in order to ensure a better legibility of the device. Section 1472 provides specific provisions allowing the arbitral tribunal to suspend the course of the proceeding. In addition, and this amendment must be emphasized, Article 1473 provides that, now, the death, incapacity, forbearance, resignation, recusal or revocation of an arbitrator are causes for the suspension of the arbitral proceedings (and not also the causes for the termination of the arbitral proceedings as laid down by former 1° and 2° of Article 1464). This amendment is intended not to require the parties to resume arbitral proceedings when faced with such difficulties: henceforth, the proceeding is suspended until the acceptance of its mission by the designated arbitrator replacing the former arbitrator. Such a provision will be a source of savings in terms of time and money for parties to arbitration.
The new articles 1476 and 1477 finally bring no amendments to the previous law, while specifying that the expiry of the arbitration period results in the termination of the arbitral proceedings, which was previously provided for by the 3rd of Article 1464.
Chapter IV is reserved for the arbitral award. This chapter does not make any significant changes to previous law, as enacted by former articles 1469 to 1476 of the Civil Procedure Code. However, two new developments should be noted. First, the third paragraph of Article 1484 takes into account the specificity of the arbitral award by allowing the parties to derogate, in a conventional manner, from the principle that the award is made by means of service. Secondly, in the matter of rectification of material error or omission of judgment, as provided for in new articles 1485 and 1486, it was made choice to limit the time given to the parties to make such requests, in order to strengthen the legal security and authority conferred on the arbitral award. In the same spirit, the deadline for the arbitral tribunal to render its decision on these applications is three months, which may be extended under the conditions provided for in the second paragraph of Article 1463.
Chapter V, consisting of articles 1487 and 1488, is reserved for exequatur. Compared to the previous state, three amendments must be highlighted. In the first place, it is expressly stated that the application procedure is not contradictory, devoting a well-established jurisprudence in this matter (Civ. 1st, 9 Dec. 2003, Russian Federation c/ Noga); in the second place, it is recalled that the execution cannot be granted if the award is manifestly contrary to public order, on which the quasi-total refusal to exercise arbitral awards is based; in the third place, and like what was envisaged in the case of international arbitration, former article 1499, it is anticipated that the execution can now be affixed to a copy of the award, "proposing the conditions necessary for its authenticity". The latter amendment will not only facilitate the enforcement of arbitral awards, but also not impose on the registries the burden of retaining the originals of arbitral awards.
Chapter VI is reserved for remedies. This chapter largely incorporates the provisions of former articles 1481 et seq. of the Code of Civil Procedure. The major amendment made by the new provisions in this matter is to reverse the principle that the appeal against the arbitral award is of law and the appeal for cancellation of the exception (formerly article 1482). Now, pursuant to Article 1489, the arbitral award is no longer subject to appeal, unless the parties otherwise wish. Thus, the remedy of common law against an arbitral award will now be the remedy for annulment and the parties will only be able to challenge the award on the basis of reasons limited by theArticle 1492 of the Civil Procedure Code. In the latter article, it should be noted that slight editorial changes have been made to the former article 1484, but not to change the substance. Thus, the 1st of this article provides as a cause of annulment the fact that "the court has declared itself wrongly competent or incompetent", which corresponds to the 1st of the former article 1484 ("the court has ruled without an arbitration agreement or a null or expired agreement"; likewise, the 2nd of article 1492, which corresponds to the 2nd of the former article 1484, makes reference to the arbitrary composition not only Finally, on the 6th of article 1492, the reasons for the cancellation set out in the 5th of the old article 1484 are explained, in order to improve the readability of the text.
The second paragraph of Article 1494 amends the provisions contained in former Article 1486: now, the appeals against the arbitral award will cease to be admissible if they have not been exercised within the month following the notice of the award and not the meaning of the award in exercise. This provision is intended to allow the parties to have a final award as soon as possible, without waiting for an exequatur.
Article 1495 states that the proceedings of the appeal or appeal for annulment shall be followed in accordance with the rules governing litigation before the Court of Appeal provided for in Articles 900 to 930-1.
In addition, Article 1497, which is based on Articles 524 to 526 of the Code of Civil Procedure, allows the first president of the Court of Appeal or the Pre-Trial Counsel to either order the interim execution of the sentence or to stop the execution of the sentence when it is likely to result in manifestly excessive consequences.
Finally, the first paragraph of Article 1498 takes part in the provisions of the former second paragraph of Article 1479, while improving the drafting and readability. The second paragraph of this article reproduces the wording borrowed by former article 1490.
Article 1499 reproduces the wording of former article 1488.
Section 1500 provides for an appeal against the order that refuses the execution. The second paragraph of this article allows a party, in the context of this appeal, to file an appeal or an appeal against the arbitral award if the time limit for exercising it is not expired.
Section 5 of the chapter on other remedies includes articles 1501 to 1503, which correspond to former articles 1481 and 1491. Unlike former section 1491, new section 1502 provides that the appeal for review is now brought before the arbitral tribunal and not before the Court of Appeal. The reasons for this change are double. First, it was observed that if the parties wished to submit their dispute to an arbitral tribunal, it was also up to the court to hear appeals for review. Secondly, it appears that the arbitral tribunal, which has already experienced a dispute, is most likely to rule on such an appeal.
Title II of the decree is reserved for international arbitration. In the continuation of the Decree No. 81-500 of 12 May 1981 establishing the provisions of Books III and IV of the new Code of Civil Procedure and amending certain provisions of this Code, the new Decree takes into account the specificity of this form of arbitration, which implies a necessary procedural flexibility. Moreover, although the new text does not expressly provide for it, it is not a question of reverting to two principles acquired in jurisprudence, whose consolidation in positive law would require the intervention of the legislator. The first is that the State or one of its emanations cannot invoke its own right in order to oppose the application of a convention to which it has consented (Civ. 1st, 2 May 1966, Galakis). The second is that an international sentence that is not attached to any State legal order, its regularity must be examined under the applicable rules in the country where its recognition and enforcement are requested (Civ. 1st, 29 June 2007).
In this context, new article 1504 does not alter the definition of international arbitration, which makes consensus and whose limits have been determined by a constant jurisprudence in this matter.
Article 1505 incorporates the provisions of the second paragraph of former article 1493, while taking into account the consecration of the notion of support judge carried out by the decree: in the matter of international arbitration, the judge of support of the arbitral proceedings is, unless otherwise provided, the president of the Court of Grand Instance of Paris when the arbitration takes place in France or the parties have agreed to submit the arbitration to the law of French procedure. In the last two cases, the new decree adds two. The first is the case where the parties have expressly given jurisdiction to the French State courts to hear disputes relating to arbitral proceedings. The second recaptured a solution by the Court of Cassation (Civ. 1st, 1st Feb. 2005, Minister of Finance of the State of Israel c/ NIOC Corporation) when one of the parties is exposed to a risk of denial of justice.
For reasons of a legal nature, it has been made choice not to take back in this title all of the articles of internal arbitration intended to apply in international arbitration. Former article 1495 referred generally to titles I, II and III of the book relating to internal arbitration, which did not facilitate the readability of the text. For this reason, Article 1506 refers to the only articles of internal arbitration whose application has an interest in international arbitration, of course, subject to an agreement contrary to the parties and to the specific provisions dealt with in the title reserved for international arbitration.
Thus, section 1506 does not refer in particular to the articles:
1443 to 1445, relating to the rules of internal validity of arbitration agreements;
1450, providing that only one person may be an arbitrator;
1451 and 1463 (paragraph 1), respectively relating to the rule of imparity in the constitution of the arbitral tribunal and the six-month arbitration period;
1480, on the principle that the arbitral award must be taken by a majority of the arbitrators;
1487 and 1488, relating to exequatur;
1489 to 1500, relating to remedies;
1501, relating to the third opposition.
Chapter I of title II is reserved for the international arbitration agreement.
Article 1507 enshrines the principle that the arbitration agreement is not subject to any formal condition, drawing in this way the consequences of former article 1495, to be accepted by the jurisprudence.
Article 1508 repends on the formulation of the former first paragraph of Article 1493, by amending it slightly, without changing the substance.
Chapter II is reserved for proceedings and arbitral award.
Article 1509 slightly alters the wording of the former article 1494 without changing the substance.
Article 1510 recalls the principle that, irrespective of the procedure chosen, the arbitral tribunal must guarantee equality of the parties and respect the principle of contradiction.
Article 1511 reproduces, by slightly modifying it, the formulation of former article 1496. Both this article and Articles 1508 and 1509 dedicate, like their predecessors, the existence of an autonomous legal order in the field of international arbitration, of course in accordance with the fundamental procedural principles recalled by Article 1510.
Article 1512 reproduces, by improving them, the provisions of former Article 1497.
Article 1513 is based on existing foreign rights. It allows the president of the arbitral tribunal, if not a majority expressed, to decide the dispute alone. Such a provision is very useful in an international arbitration context, in which arbitrators do not necessarily know each other and sometimes do not share the same conceptions with respect to the fundamental principles of procedural law.
Chapter III is reserved for the recognition and enforcement of arbitral awards rendered abroad or in international arbitration.
Article 1514 amends the drafting of the former article 1498 without changing the substance of it, provided that the decision declaring the arbitral award proceeds with the prior recognition of the arbitral award and authorizes its execution in French territory.
Article 1515 determines the conditions under which the applicant for recognition or enforcement of the arbitral award may apply for such applications where the arbitration agreement or arbitral award is not in the French language. In order to lighten such a procedure in an international context where, often, persons interested in adjudication are perfectly familiar with several languages, it is not required that, at first, translation be prepared by an expert translator. However, the applicant for recognition or enforcement of the arbitral award may be invited to produce a translation not only, as in the past, by a translator registered on a list of judicial experts, but also, in order to meet the requirements of the European Union law, by a translator authorized to intervene with the judicial or administrative authorities of another Member State of the European Union, a State party to the European Economic Area Agreement on the European Union or
Article 1516 determines the conditions under which the procedure for an application for exequatur takes place, taking into account the anticipated innovations, in respect of internal arbitration under new Article 1487. It also sets out the rules of territorial jurisdiction of the judge of the exequatur, i.e. a court of great instance in whose jurisdiction the arbitral award was rendered when the award was rendered in France and a tribunal of great instance in Paris when the award was rendered abroad.
New article 1517 is the subject of new article 1487, adapting it to an international context.
Chapter IV is reserved for remedies. The purpose of the reform was essentially to clarify the provisions of former articles 1501 to 1507, whose presentation did not allow for a clear differentiation of the remedy regime as it concerned an appeal against an international sentence rendered in France or abroad. This is why the new chapter provides for three sections, one reserved for awards rendered in France (articles 1518 to 1524), the other reserved for awards rendered abroad (section 1525) and, finally, one reserved for provisions common to sentences rendered in France or abroad (articles 1526 and 1527).
The provisions reserved for awards rendered in France are not subject to any amendment to the previous law, subject to three exceptions. First, section 1519 takes into account the ability of the parties to notify the awards by other means than that of service, if they agree otherwise. In this context, it should be noted that, as in the second paragraph of article 1494 on internal arbitration, the time limit for appealing annulment is shortened, since it ceases to pass the period of one month following the notification of the award and not the sentence declared enforceable, as provided for in former article 1505. Secondly, new section 1522 provides an opportunity for the parties to the arbitration, if expressly agreed, to waive the appeal for cancellation, being specified that, in this case, they may always appeal against the exequatur order on the basis of the same grounds as those provided for the annulment appeal. Such a provision, which preserves the right of parties to an effective remedy, is based on existing foreign rights. It appears to be useful when foreign parties use instead of Paris to settle their dispute, without the execution of the sentence being sought in France. Thirdly, section 1523 provides, as section 1500 in the matter of internal arbitration, the power of a party to request, in the context of the appeal against the order that refuses the exercise, the cancellation of the arbitral award, provided, on the one hand, that the parties did not waive the appeal for cancellation, in accordance with the provisions of article 1522, and, on the other hand,
The provisions of Article 1525 do not alter the state of the prior law, however, stating that it has been taken into account the possibility for the parties to notify the sentence of the exercise according to other modes than the meaning.
The provisions of Articles 1526 and 1527 are intended to apply indifferently as the international sentence has been rendered in France or abroad. New section 1526 is an innovation in relation to the state of the previous law, since it provides for the absence of a suspensive effect when an appeal or appeal for cancellation has been made against an award. Such an amendment was intended to avoid the dilatory remedies exercised by parties of bad faith. However, paragraph 2 reserves the application of the preceding paragraph where the enforcement of the award is likely to seriously affect the rights of one of the parties.
Article 3 of the Decree is reserved for transitional provisions. In order for the amendments made by the decree to be harmoniously incorporated into the existing law, this article provides that the provisions of the decree will apply on the first day of the fourth month following its publication, subject to the following provisions.
To that end, it is anticipated that:
1° It will only apply to arbitration agreements concluded after that date:
the provisions governing the arbitration agreement (articles 1442 to 1445);
- those who, in the matter of internal arbitration, reverse the principle that the appeal constitutes a means of recourse to common law against the arbitral award (Article 1489);
- those who, in matters of international arbitration, give jurisdiction to the supporting judge when the parties have chosen the French procedural law or have expressly given jurisdiction to the French State judge to hear disputes relating to the arbitral proceedings (Article 1505, 2° and 3°);
2° All provisions relating to the arbitral tribunal itself will only apply when the arbitral tribunal has been constituted after that date;
3° Finally, the provisions relating to the absence of a suspensive effect of the appeal or appeal for annulment against international arbitral awards, as provided for in Article 1526, shall apply only in the case that the arbitral award was rendered after that date.
Article 4 of the decree finally provides the vocation of the decree to apply to the Wallis and Futuna Islands.
Since no specific provision has been made with respect to the particular regime of Alsace-Moselle, this decree will apply in the departments of Upper Rhine, Lower Rhine and Moselle, subject to articles 1025 and 1026 of the local code of civil procedure.
This is the subject of this decree which we have the honour to submit to your approval.


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