International Arbitration in Paris | Alaris Law Firm
International Chamber of Commerce Paris (ICC)
Arbitration clause in international commercial contracts
In order to bring proceedings in France before an arbitral tribunal, usually the International Chamber of Commerce (ICC) based in Paris, a contractual jurisdiction clause in the commercial contracts, the so-called arbitration clause, is required.
It is open to the parties to adapt this clause to their particular situation. For example, the ICC Arbitration Rules generally provide for a sole arbitrator. However, the parties may differ from the number of arbitrators (see also Art. 1508 Code Civil). Likewise, it may be desirable for them to stipulate the place and language of arbitration and to determine the law applicable to the legal dispute (see also Article 1509 Civil Code).
The ICC Rules of Arbitration therefore do not limit the parties in their free choice as to the place and language of the arbitration and the law applicable to the contract.
The arbitral tribunal is therefore subject to the rules laid down in the commercial contracts themselves, often by reference to the arbitration rules. This would be for the International Chamber of Commerce ICC the 2017 Arbitration rules: https://iccwbo.org/dispute-resolution-services/arbitration/rules-of-arbitration/
If an arbitration clause is included in the commercial contract, the national French courts are no longer competent. However, the special jurisdiction must be invoked by the parties (Cass, 2e civ., 22 nov 2001, préc. – Cass, 1re civ., 23 january 2007, n ° 06-11.157: JurisData n ° 2007-037067; Rev. arb., 2007, pp. 290. – Cass, 1re civ., 3 févr., 2010, n ° 09-12.669: JurisData n ° 2010-051399 .- Cass. 1re civ., 14 avr., 2010, n ° 09 -12.477: JurisData n ° 2010-004059; Rev. arb. 2010, p.495, P. Caillé).
The national French courts are exceptionally competent even if an arbitration clause is stipulated if the International Chamber of Commerce ICC has not yet been appointed and the arbitration clause is manifestly void or inapplicable (Article 1448 CPC). These are cumulative conditions.
Furthermore, as long as the Arbitral Tribunal has not yet been appointed, it is still possible to file a lawsuit before the French courts for temporary legal protection procedures for effective provisional remedies (so-called Référé) (Art 1449 CPC).
Due to the principle of the binding effects of agreements (Article 1165 Code Civil), the arbitration clause binds only the parties that have concluded and therefore does not oblige third parties.
The invalidity of the arbitration clause has no effect on the validity of the remaining contractual clauses (Article 1447 CPC).
Parties are free to adapt the clause to their particular circumstances. For instance, they may wish to stipulate the number of arbitrators given that the ICC Arbitration Rules contain a presumption in favour of a sole arbitrator. Also, it may be desirable for them to stipulate the place and language of the arbitration and the law applicable to the merits. The ICC Arbitration Rules do not limit the parties’ free choice of the place and language of the arbitration or the law governing the contract.
For example, a possible standard clause for the ICC would be: “All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.”
A big advantage of the International Chamber of Commerce in Paris is the fact that the parties get quickly a sentence. As stated above, the parties may themselves decide on the arbitrator, language and venue of the proceedings or applicable law. The big disadvantage, however, are the enormously high process and arbitration costs and the fact that an appeal is rarely possible.
The sentence requires a declaration of enforceability by the French national court.
Concerning the start of proceedings before the International Chamber of Commerce in Paris, there is no formal request, either party may submit the application in the form it desires to the following address:
Secretariat of the International Court of Arbitration of the International Chamber of Commerce
33-43 avenue du Président Wilson
75116 Paris, France
Tel. +33 1 49 53 29 05
Fax: +33 1 49 53 29 33