The arbitration clause
( articles 1442 to 1446 of the Code of Civil Procedure )
The arbitration clause is the agreement by which the parties to a contract undertake to submit to arbitration any disputes which may arise in relation to this contract.
The arbitration clause must, on pain of nullity, be stipulated in writing in the main agreement or in a document to which it refers.
Under the same sanction, the arbitration clause must either designate the arbitrator (s) or provide for the terms of their designation.
if article 1443 of the new Code of Civil Procedure requires that the arbitration clause appear in a written document, it does not govern either the form or the existence of the stipulations which, referring to this document, constitute the agreement of the parties Cass. 2nd Civ. January 21, 1999
in international arbitration, the arbitration clause by written reference to a document which contains it, for example general conditions or a standard contract, is valid, in the absence of mention in the main agreement, when the party to which the clause is opposed, was aware of the content of this document at the time of the conclusion of the contract, and that it has, even through its silence, accepted the incorporation of the document into the Cass contract 1st civ. November 9, 1993
Difficulties in setting up an arbitral tribunal
If, once the dispute arises, the constitution of the arbitral tribunal encounters a difficulty on the part of one of the parties or in the implementation of the terms of appointment, the president of the tribunal de grande instance appoints the arbitrator (s).
However, this designation is made by the president of the commercial court if the agreement has expressly provided for it.
If the arbitration clause is either manifestly null or insufficient to enable the arbitral tribunal to be set up, the president shall note this and declare that there is no need to appoint it.
REFUSAL OF DESIGNATION AND EXCESS OF POWER
Referral to the arbitral tribunal
The dispute is submitted to the arbitral tribunal either jointly by the parties or by the most diligent party.
Nullity of the arbitration clause
When it is null, the arbitration clause is deemed unwritten.
JURISPRUDENCE COMPROMISSORY CLAUSE
Form of the arbitration clause
Cass. 2nd Civ . January 21, 1999
if article 1443 of the new Code of Civil Procedure requires that the arbitration clause appear in a written document, it does not govern either the form or the existence of the stipulations which, referring to this document, constitute the agreement of the parties;
Arbitration clause and jurisdiction clause
Cass.com December 18, 2003
“ in order to rule out the arbitration clause contained in the contract concluded between the real estate company (SCI) La Chartreuse, whose manager is the company Immodis, and the company Viadix, represented by Mr X …, the contested judgment is limited to note the contradiction between this clause and a clause conferring jurisdiction appearing in the same act to conclude that the common intention of the parties to resort to arbitration has not been established; That by determining thus, without characterizing the nullity or the manifest inapplicability of the arbitration clause, only such as to obstruct the arbitral competence to rule on the existence, the validity and the extent of the agreement of ‘arbitration, the court of appeal exceeded its powers and violated the aforementioned texts and principle “
Autonomy of the arbitration clause
Cass. com. April 9, 2002
In domestic arbitration law, the arbitration clause presents, with respect to the main agreement in which it is inserted, a legal autonomy which excludes, unless otherwise agreed, that it may be affected by a possible ineffectiveness of this agreement.
Cass. 2nd civ. April 4, 2002
since the arbitration clause presenting, with respect to the main agreement in which it is inserted, a legal autonomy which excludes it from being affected by the ineffectiveness of this act, the judgment rightly holds that the possible nullity of the subcontract has no effect on the validity of the arbitration clause
Arbitration clause and lapse of the agreement
Cass 2nd Civ. April 04, 2004
the judgment holds that in the absence of the guarantee being called into play before the stipulated term, the agreement has lapsed, which defeats the application of the arbitration clause that it contained and therefore the procedure for arbitration;
That by determining thus, without characterizing the nullity or the manifest inapplicability of the arbitration clause, only such as to obstruct the priority competence of the arbitrator to rule on the existence, the validity and the extent of the arbitration agreement, the court of appeal exceeded its powers and violated the aforementioned texts and principle;
Arbitration clause in a contract which could not enter into force
Cass. civ. 1.1 December 6, 1988
T he principle of autonomy of the arbitration clause makes it possible to take advantage of this clause even when the contract signed by the parties has not been able to enter into force, since the dispute between them is linked to its conclusion. Consequently, it is right that, seized on the basis of article 1502.1 ° of the new Code of Civil Procedure, of an action for annulment of an international arbitral award, on the grounds that, the contract not having could enter into force because of the breaches of the parties, the arbitration clause which was included therein would have been deprived of any effect, the court of appeal rejects this ground of nullity based on the principle of autonomy of the arbitration clause.
Autonomous validity of the arbitration clause
the arbitration clause presents, in relation to the main agreement in which it is inserted, a legal autonomy which excludes, unless otherwise stipulated, that it may be affected by the ineffectiveness of this act;
Arbitration clause and commerciality
Cass. 2 nd civ. 2 January 7, 1999
the disputed sale, which concerned all the shares of the company Capsem and thus transferred control of the company, was of a commercial nature and could be the subject of arbitration
Arbitration clause and improper support action
Cass.com. January 14, 2004
the judgment holds for reasons adopted that the liquidator, who was not party to the contract stipulating the arbitration clause, acts in responsibility in the interest of the creditors against the franchisor for abusive support brought to the franchised company, which results that the said clause is unrelated to the dispute;
Nullity of the arbitration clause
Cass. 2nd civ. November 21, 2002
the unreserved participation of Mr X … in the arbitration was worth on his part waiver of the right to invoke the nullity of the arbitration clause by maintaining that it was inserted in an act
Succession of acts and arbitration clause
Cass. 2 nd civ. 2 January 7, 1999
the reconciliation in time of the two acts and their economic identity demonstrate that there has been substitution, that this succession of acts and the references made from the second to the first reveal that the transaction is in fact unique and that the parties considered as binding them all the stipulations contained in the act of April 2 and in that of April 13 which completes and concretizes it;
Transmission of the subrogation clause by subrogation
Cass. 1st civil March 16, 2004
the arbitration clause, transmitted by the effect of the subrogation to the pool of insurers, was applicable between the company GMF and the captain of the vessel
Homogeneous chain of contracts and transmission of the arbitration clause
Cass. Civ I, February 6, 2001
Considering article 1492 of the new Code of Civil Procedure;
Whereas in a homogeneous chain of contracts of transfer of goods, the international arbitration clause is transmitted with the contractual action, except proof of the reasonable ignorance of the existence of this clause;
Assignment of receivables and arbitration clause
Cass. civ. 2 December 20, 2001
Having regard to article 1692 of the Civil Code;
Whereas the assignment of a debt includes the accessories of the debt;
Plurality of defendants and arbitration clause
Cass. Civ I, February 6, 2001
Considering articles 42, paragraph 2, and 1492 of the new Code of Civil Procedure;
the prorogation of jurisdiction in the event of multiple defendants – the dispute was it indivisible – is foreign to the determination of the power to judge of the state jurisdiction to which an arbitration clause is opposed;
Arbitration clause and summary judge
Considering articles 809, paragraph 2, and 1458 of the new Code of Civil Procedure;
Scope of the arbitration clause and territorial jurisdiction
Cass. 2nd civ. February 9, 1994
Whereas the exceptional competence recognized to the judge of summary proceedings, in the presence of an arbitration agreement, is subject to the condition of urgency;
no legal provision determines or limits the territorial jurisdiction of the arbitral tribunals nor obliges them to carry out in the same place all the acts necessary for the execution of all the heads of their mission, including the debates and the pronouncement of the award, and that the court of appeal notes that in this case the court was held only in the terms of the conventional arbitration clause according to which the case had to be remitted “to arbitration in Lyon”; that, from these statements and findings, it was able to deduce that this formula does not mean that all the arbitration proceedings had to take place in Lyon, but only that at least the pronouncement of the award had to take place there, which alone has consequences as to the exercise of remedies
Verification by the arbitrator of his own competence
Cass. com. March 4, 2003
Considering the principle according to which it is up to the arbitrator to rule on his own competence;
International arbitration and reference clause
Cass. 1st civ. November 9, 1993
in international arbitration, the arbitration clause by written reference to a document which contains it, for example general conditions or a standard contract, is valid, in the absence of mention in the main agreement, when the party to which the clause is opposed, was aware of the content of this document at the time of the conclusion of the contract, and that it has, even by its silence, accepted the incorporation of the document into the contract;
C lause arbitration and conflict of laws
by virtue of a substantive rule of international arbitration law, the arbitration clause is legally independent of the main contract which contains it directly or by reference and that its existence and effectiveness are assessed, subject to the mandatory rules of French law and international public order, according to the common will of the parties, without it being necessary to refer to a state law;
Arbitration clause and international employment contract
the arbitration clause inserted in an international employment contract is not enforceable against the employee who has regularly seized the competent French court under the applicable rules, regardless of the law governing the employment contract;