French Public Order as Restriction of Arbitration Clause in the Contracts of International Commerce

Abstract

The article describes a new observation over the role of French public order in international arbitration. Based on the fact that France is well known as a privileged venue for arbitration. It has aided deliver international arbitration with the means to become a reliable dispute resolution mechanism and to form itself as an alternative dispute mechanism to local courts. France adopted a new arbitration law in 2011, modernizing the rules applicable to both national and international arbitration. This new law organizes the principles established in case law and aims to have the trust of international arbitration actors in the French legal system.

Enabling to analytical observing, we found that the French law has approved international arbitration extensive autonomy. However, this autonomy is not entire: it finds its limit in public order. Recent progresses lead to a failure in public order in the arbitration clause. Jurisprudence has not only authorized arbitrators to apply rules and principles of public order, but it has also gave them the power to sanction their violation. The French law has even adopted a material rule of general scope where public order plays a particular role: it has become the sole cause of nullity of the international arbitration clause.

The French public order don’t allow violation of its perspective of international public order, even in the international commerce contracts. It recalls that it is up to it, not to verify whether the arbitral decisions were or were not taken legally, but to determine whether the recognition or the execution of the award is likely to hinder the legal objective of certain actions, as defined by the international commercial contract. It rightly holds that such research, conducted for the defense of international public order, is neither limited to the evidence produced before the arbitrators nor bound by the findings, assessments and qualifications made by them, its only in this respect consisting of ensuring that the production of evidence before it respects the principle of adversarial and equality of arms.