Chapter VIII: Arbitration
All capable persons can subscribe to an arbitration agreement on the rights of which they have free disposal.
However, we cannot compromise:
– on donations and bequests of food, clothing and housing;
– on matters concerning the condition and capacity of persons;
– on questions of public order and in particular:
– disputes concerning acts or goods subject to a public law regime;
– disputes involving the application of a tax law;
– disputes involving laws relating to price taxation, forced exchange rates, foreign exchange and trade;
– disputes concerning nullities and the dissolution of companies.
The compromise must always be in writing:
It can be the subject of a report drawn up before the chosen arbitrator (s), of an act passed before a notary or adoul or even of a private deed, according to the will of the parties.
The compromise must designate, on pain of nullity, the object of the dispute and the name of the arbitrators; it fixes the time limit at the end of which the arbitrator (s) must have rendered their arbitration award. If the compromise has not fixed the time limit, the powers of the arbitrators expire after three months from the day on which their appointment was notified.
The parties may, in any contract, agree to submit to the arbitrators’ decision the solution of any disputes which may arise during the execution of the contract.
They can, moreover, when the contract concerns an act of commerce, designate in advance in the convention itself, the arbitrator or arbitrators. In this case, the arbitration clause must be handwritten and specially approved by the parties, on pain of nullity.
If the appointment of arbitrators could not be made or not been made in advance, one of the parties refuses, when a dispute arises, to make this appointment, as far as it is concerned, the other party may Submit a request to the president of the court who will subsequently have to render the arbitral award enforceable, with a view to the appointment of the arbitrators, by simple order, not subject to appeal.
The powers of the arbitrators, whether appointed by the parties or by order of the president, expire within the time limits provided for in article 308.
During the period of the arbitration, the arbitrators may be removed only with the unanimous consent of the parties; this revocation may apply to only one of the arbitrators.
The revocation puts an end to the powers of the arbitrators and any award they would have rendered, after their revocation, would be null even if they had not previously been notified of their revocation.
The parties and the arbitrators follow in the proceedings the time limits and forms established for the courts of first instance, if the parties have not agreed otherwise.
The arbitrators are required to participate together in all the work and all the operations, as well as in the drafting of the minutes, unless the parties have authorized them to entrust one of them with the execution of the proceedings. one of these formalities.
The compromise ends:
1 ° By the death, refusal, resignation or incapacity of one of the arbitrators, unless the agreement provides that it will be overridden or that the replacement will be at the choice of the parties, or at the choice of the arbitrator or the remaining arbitrators;
2 ° By the expiration of the stipulated time limit or that of three months if no special time limit had been fixed;
3 ° By sharing opinions, if the arbitrators do not have the power to hire a third arbitrator;
4 ° By the death of one of the parties, if the latter leaves one or more minor heirs;
5 ° If before the pronouncement of the arbitration award, one of the parties has become incapable.
Arbitrators may not renounce their mission if their operations have started under penalty of damages for the benefit of the parties in compensation for the damage thus caused by their fault.
They cannot be challenged, except for a cause that has arisen or discovered since their appointment; if a false entry is made, even a purely civil one, or if some criminal incident arises during the arbitration, the arbitrators suspend their work until the incident has been resolved by the ordinary courts and the time limit is suspended and does not begin to run again until the day on which the incident has been definitively settled.
Each of the parties is required to produce its documents and its means of defense, at least fifteen days before the expiry of the arbitration period; arbitrators are only required to rule on what has been produced to them.
The arbitration award is signed by each of the arbitrators; in the event that there are more than two arbitrators, if the minority refuses to sign, the other arbitrators shall mention it and the award has the same effect as if it had been signed by each of the arbitrators.
When the arbitrators could not agree on the solution to be given to the question submitted to them and the parties had, when establishing the compromise or the arbitration clause, agreed that, in this case, the arbitrators would be decided by a third arbitrator, the arbitrators designate this third arbitrator, or, if they cannot agree on this designation, draw up a report noting it; the third-party arbitrator is then, at the request of the most diligent party, appointed by order of the president of the court who would possibly be competent to order the execution of the arbitration award. This order is not subject to any appeal.
The divided arbitrators are required to draw up their separate and reasoned opinions, either in a single report or in separate reports.
In the absence of any stipulation in the compromise or in the act appointing the third arbitrator, the latter is required to rule within the month following its acceptance.
The third arbitrator is informed by the opinions of the shared arbitrators and by the conference held by him with them; he may, moreover, order new investigative measures, but he must limit himself to indicating which of the divergent opinions appears to him to be the best and his award must express the choice thus made, even if, in the absence of the arbitrators summoned to to meet, he has to decide on his own.
The arbitrator and the third party must refer to the precise legal rules applicable to the dispute, unless the parties have stipulated in the arbitration agreement or in the arbitration clause, that they must rule on an equitable basis as amiable composateurs without complying. the legal rules or that the extent of the powers given by the parties to the arbitrators does not allow it to be said that such was undoubtedly the intention of the said parties.
If the appointed arbitrators had the power to rule as amiable composers, the same applies to the third arbitrator.
The arbitration award must be in writing, contain a statement of the parties’ claims and an indication of the disputed issues resolved by the award, as well as a mechanism ruling on these issues.
It must be signed by the arbitrators, specify their identity, and mention the date and place where it was returned.
The arbitrary award is not, in any case, subject to appeal.
The arbitration award is made enforceable by order of the president of the court of first instance in whose jurisdiction it was made.
For this purpose, the minute of the award is filed with the registry of this jurisdiction by one of the arbitrators within three days of its pronouncement.
If it has been compromised on the appeal of a judgment, the arbitration award is filed with the registry of the court of appeal and the order is issued by the first president of this jurisdiction.
The costs relating to the filing of requests are payable by the parties and not by the arbitrators.
The president of the court of first instance or the first president of the court of appeal seized of the request does not have, in any way, to examine the merits of the case; he must, however, ensure that the arbitration award is not affected by a nullity of public order, in particular for violation of the provisions of article 306.
The arbitration award definitively endorsed with the enforceable formula, either by the president of the court of first instance, or by the first president of the court of appeal, on appeal by one of the parties, is notified at the request of the party more diligent.
The decision of the president of the court of first instance may be appealed in the ordinary forms, within thirty days of its notification, unless the parties have waived this remedy in advance, that is to say during the designation of the arbitrators, either since this designation, but before the pronouncement of the award.
This appeal is brought before the court of appeal. The territorially competent jurisdiction is that in which the arbitration award was made.
The appeal court rules according to the ordinary rules.
The rules on the provisional enforcement of court judgments are applicable to arbitral awards.
Arbitral awards, even accompanied by the exequatur decision, are not enforceable against third parties, who may however make third party opposition under the conditions provided for by articles 303 to 305.
Arbitral awards may be the subject of a request for retraction before the court which would have heard of the case if there had not been an arbitration agreement.
The cassation appeal is open against the decisions rendered in last resort, either on a request for retraction, or on appeal of the judgment granting or refusing the exequatur, as well as against the order of the first president of the court of appeal rendered by application of paragraph 3 of article 320.