COMPROMISE CLAUSE
LexInter | March 25, 2019 | 0 Comments

COMPROMISE CLAUSE

NEW CODE OF CIVIL PROCEDURE

Chapter I: The arbitration clause

Article 1442

(inserted by Decree n ° 81-500 of May 12, 1981 Official Journal of May 14, 1981 corrigendum JORF May 21, 1981)

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.

Modified by Decree n ° 2011-48 of January 13, 2011 – art. 2

The arbitration agreement takes the form of an arbitration clause or a compromise.

The arbitration clause is the agreement by which the parties to one or more contracts undertake to submit to arbitration any disputes which may arise in relation to this or these contracts.

The compromise is the agreement by which the parties to a dispute that arises submit it to arbitration.

NOTE:

Decree No. 2011-48 of 13 January 2011 Article 3 1. These provisions apply when the arbitration agreement was concluded after 1 st May 2011.

Article 1443

(inserted by Decree n ° 81-500 of May 12, 1981 Official Journal of May 14, 1981 corrigendum JORF May 21, 1981)

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.

Modified by Decree n ° 2011-48 of January 13, 2011 – art. 2

Under penalty of nullity, the arbitration agreement is written. It may result from an exchange of writings or from a document referred to in the main agreement.

NOTE:

Decree n ° 2011-48 of January 13, 2011 article 3 1 °: These provisions apply when the arbitration agreement was concluded after May 1, 2011.

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;

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 

 

Article 1444

(inserted by Decree n ° 81-500 of May 12, 1981 Official Journal of May 14, 1981 corrigendum JORF May 21, 1981)

If, when 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.

Article 1444

Modified by Decree n ° 2011-48 of January 13, 2011 – art. 2

The arbitration agreement designates, where applicable by reference to an arbitration rule, the arbitrator (s), or provides for the terms of their appointment. Otherwise, the procedure is carried out in accordance with the provisions of articles 1451 to 1454.

NOTE:

Decree No. 2011-48 of 13 January 2011 Article 3 1. These provisions apply when the arbitration agreement was concluded after 1 st May 2011.

 

 

REFUSAL OF DESIGNATION AND EXCESS OF AUTHORITY

 

Article 1445

(inserted by Decree n ° 81-500 of May 12, 1981 Official Journal of May 14, 1981 corrigendum JORF May 21, 1981)

The dispute is submitted to the arbitral tribunal either jointly by the parties or by the most diligent party.

Article 1445

Modified by Decree n ° 2011-48 of January 13, 2011 – art. 2

Under penalty of nullity, the compromise determines the subject of the dispute.

NOTE:

Decree No. 2011-48 of 13 January 2011 Article 3 1. These provisions apply when the arbitration agreement was concluded after 1 st May 2011.

Article 1446

(inserted by Decree n ° 81-500 of May 12, 1981 Official Journal of May 14, 1981 corrigendum JORF May 21, 1981)

When it is null, the arbitration clause is deemed unwritten.

Article 1446

Modified by Decree n ° 2011-48 of January 13, 2011 – art. 2

The parties can compromise even in the course of a proceeding already initiated before a court.

Article 1447

Modified by Decree n ° 2011-48 of January 13, 2011 – art. 2

The arbitration agreement is independent of the contract to which it relates. It is not affected by the ineffectiveness of it.

When it is null, the arbitration clause is deemed unwritten.

Article 1448

Modified by Decree n ° 2011-48 of January 13, 2011 – art. 2

W hen a dispute relating to an arbitration agreement is brought before a State court, the latter declares itself incompetent unless the arbitral tribunal has not yet been seised and the arbitration agreement is manifestly void. or manifestly inapplicable.

The jurisdiction of the State cannot automatically raise its incompetence.

Any stipulation contrary to this article is deemed unwritten.

Article 1449

Modified by Decree n ° 2011-48 of January 13, 2011 – art. 2

The existence of an arbitration agreement does not preclude, as long as the arbitral tribunal is not constituted, that a party seizes a jurisdiction of the State for the purpose of obtaining an investigative measure or a provisional or protective measure.

Subject to the provisions governing protective seizures and legal security, the request is brought before the president of the tribunal de grande instance or commercial, who rules on the investigative measures under the conditions provided for in article 145 and, in the event of emergency, on provisional or protective measures requested by the parties to the arbitration agreement.

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