Guide to Arbitral Institutions and the Seat of Arbitration in France

ARBITRATION INDEX

When parties plan to resolve disputes by arbitration, there are several key considerations regarding procedure. In the fourth of a multi-part series, we look at two key features to consider when drafting (and applying) your arbitration agreement:

• What rules will apply to the arbitration process? (the Rules), and
• What national law will govern the procedure? (the Seat).

This series covers a variety of Rules and Seats, this month we consider the rules of the International Chamber of Commerce (“ICC”) Rules (the “ICC Rules”), with the relevant arbitration seated in France.

But first, back to basics — what are the Rules of an arbitration and what is the purpose of including the Seat in your arbitration agreement?

The Rules: It is common, and typically preferred, for parties to choose an arbitral institution to administer the arbitration by choosing a set of arbitral rules. An administered arbitration significantly lowers the administrative burden on the parties and the tribunal, such as by the institution distributing documents, assisting with the establishment of the tribunal, managing fees and payments and managing the disclosure process during arbitrator appointments and conflict of interest challenges. An administered arbitration also allows for scrutiny of the arbitral award before it is sent to the parties. In contrast, an ad hoc arbitration does not guarantee the smooth running of the arbitration or any scrutiny of the award, as the parties will have to specifically agree on all of these steps. This can add to the time and cost of the arbitration process. Where an arbitral institution is chosen to administer the arbitration, that institution will generally have institutional rules that set out, amongst other things, the process and timing for commencing proceedings, how to establish a tribunal, management of hearings, and awards. It is key to carefully consider which set of rules is best for your specific circumstances, as each set of rules has a slightly different approach to various procedural issues.

The Seat: The ‘seat’ of arbitration refers to the legal jurisdiction in which the arbitration is considered to be located for procedural and administrative purposes.

The seat determines the substantive law governing the arbitration proceedings (and, depending on the jurisdiction, may also govern the arbitration agreement itself) and the arbitration award. Where the law of the seat also applies to the arbitration agreement itself, this includes laws related to the validity, interpretation, and enforcement of the arbitration agreement and the ultimate arbitral award. The seat determines where the award was made, which is key for enforceability. The courts of the seat also have a supervisory role, to support the arbitration process, including enforcement of interim measures.

A different system of law may be selected to decide the substantive issues in dispute. For example, you could have a sale and purchase agreement that is governed by the laws of England and Wales but provide for dispute resolution seated in Paris, France. When preparing your arbitration agreement, it is key that you consult your counsel team on the potential impact of the arbitration agreement, including the interrelation between your governing law and the arbitration agreement.

The below sets out a handy checklist of key considerations if you plan to include the ICC Rules with the arbitration seated in Paris, France in your arbitration agreement.

ICC 2021 Arbitration Rules and France as the Seat of arbitration

THE RULES

How to commence arbitration under the ICC Rules

Any party wishing to commence arbitration under the ICC Rules must submit a Request for Arbitration (the “Request”) to the Secretariat of the ICC.

The Request must include:

1. full names, descriptions, addresses and contact details of the parties involved and the claimant’s representatives;
2. a description of the circumstances of the dispute and the basis of the claims;
3. a description of the relief being requested, including the amounts for any specified claims and, where feasible, an estimate of the monetary value for any other claims;
4. a copy of the arbitration agreement(s) and any other relevant agreements. Where claims are made under more than one arbitration agreement, it must be indicated under which agreement each claim is made;
5. any relevant information and/or proposals relating to the number of arbitrators and the nomination of arbitrators; and
6. pertinent details and any comments or suggestions regarding the location of the arbitration, the governing legal rules, and the language to be used in the arbitration

If the parties have agreed in the arbitration agreement that the dispute shall be heard by a three-member Tribunal then the nomination of an arbitrator must be included in the Request.

The claimant must also pay a non-refundable filing fee, which is set out in Appendix III of the ICC Rules and is set at USD 5,000 at the time of publication. The Secretariat will then notify the respondent and provide them with a copy of the Request once it has the filing fee and sufficient copies of the Request if the claimant requests delivery to each other party and the arbitrators by courier or post.

The arbitration shall be deemed to commence on the date on which the Request is received by the Secretariat.

How to respond to a Request for Arbitration

The respondent has 30 days from receipt of the Request from the Secretariat (not from the claimant) to submit an Answer to the Request (the “Answer”). The Answer should contain:

1. full names, descriptions, addresses and contact details of the respondent(s) and the respondent’s representatives;
2. comments on the circumstances of the dispute and the basis of the claims;
3. comments on the relief being requested;
4. any comments on claimant’s comments and/or proposals relating to the number of arbitrators and the nomination of arbitrators; and
5. pertinent details and any comments or suggestions regarding the location of the arbitration, the governing legal rules, and the language to be used in the arbitration.

If the parties have agreed in the arbitration agreement that the dispute shall be heard by a three-member Tribunal then the nomination of an arbitrator must be included in the Answer.

The Secretariat may extend the 30-day deadline, on the respondent’s application, only if such application contains the respondent’s comments, suggestions and/or nomination related to the appointment of arbitrators. This is to ensure that the Tribunal can be constituted in a timely fashion.

The respondent shall also submit any counterclaims with its Answer, setting out the counterclaim in the same manner as is required of a claimant setting out a claim in the Request. Upon the submission of counterclaims and transmission to the claimant, the claimant has 30 days to respond to the counterclaim or any other time period as granted by the Secretariat.

Under the ICC Rules: How are arbitrators appointed?

Disputes can be resolved by either a sole arbitrator or a panel of three arbitrators. If the parties do not agree on the number of arbitrators, the ICC Court (the “Court”) will appoint a sole arbitrator unless the dispute warrants three arbitrators (for instance, taking into account the size and complexity of the issues in dispute). If the Court decides that a three-member Tribunal is appropriate, the claimant and respondent must each nominate an arbitrator, the claimant within 15 days of receiving the Court’s decision and the respondent within 15 days of receiving the claimant’s nomination. If either party fails to nominate, the Court will appoint the arbitrator. The third arbitrator, who will serve as the president of the arbitral tribunal, will be appointed by the Court unless the parties have agreed on a different appointment procedure.

For disputes where the parties agree there will be a sole arbitrator, the parties can jointly nominate the arbitrator for confirmation. If they fail to do so within 30 days of the claimant’s Request, the Court will appoint the arbitrator.

For disputes where the parties agree there will be three arbitrators, each party nominates one arbitrator in their Request and Answer. If a party fails to nominate, the Court will appoint the arbitrator. The third arbitrator, who acts as the president of the Tribunal, is appointed by the Court unless another procedure is agreed upon by the parties. If the agreed upon procedure does not appoint the third arbitrator within 30 days, or any other timeline as agreed by the parties or fixed by the Court, the Court will appoint the third arbitrator.

In cases with multiple claimants or respondents, the claimants together or the respondents together must jointly nominate an arbitrator. If an additional party is joined to the dispute, they may jointly nominate an arbitrator with the claimant(s) or respondent(s).¹ If joint nominations are not made and the parties cannot agree on the Tribunal’s constitution, the Court will appoint all members and designate one as president.

In exceptional circumstances, to avoid significant risks of unequal treatment and unfairness, the Court may appoint each member of the Tribunal, overriding any prior agreement by the parties.

When appointing arbitrators, the Court will consider the prospective arbitrator’s nationality, residence, and relationships with the countries of the parties or other arbitrators. It should be noted that there are restrictions on the nationalities of arbitrators; a sole arbitrator or president of a Tribunal generally cannot be the same nationality as any of the parties; however, it may be considered acceptable in certain circumstances, provided the parties do not object. If the arbitration arises from a treaty, no arbitrator can have the same nationality as a party unless otherwise agreed by the parties.

To challenge an arbitrator upon confirmation, a party must submit a written statement to the Secretariat detailing the facts and circumstances of the challenge, whether it concerns impartiality, independence, or other reasons. This challenge must be made within 30 days of receiving notification of the arbitrator’s appointment, or within 30 days of becoming aware of the relevant facts which form the grounds of challenge if this occurs later.

The Court will determine whether the challenge is admissible and assess its merits. Prior to making a decision, the Secretariat will invite the challenged arbitrator, the other parties, and any other Tribunal members to submit written comments within an appropriate period. These comments will be communicated to all parties and arbitrators.

Under the ICC Rules: What is the general timeline for arbitration?

As noted above, upon transmittal of the Request by the Secretariat, the respondent has 30 days to respond with the Answer. The parties or Court will then appoint arbitrators to the Tribunal and transmit the file to the Tribunal upon payment of the advance on costs by the parties.

Once the file has been transmitted to the Tribunal, the Tribunal has responsibility for setting the procedural timetable and will set a case management conference to do so. Simultaneously, the Tribunal will create a terms of reference, which it must do within two months of transmittal of the file. The terms of reference must include:

1. the full names and description of the parties and arbitrators;
2. contact details and notification requirements for all parties and the Tribunal;
3. a summary of the parties’ respective claims and relief sought;
4. a list of issues to be determined;
5. the place of arbitration; and
6. particulars concerning the applicable procedural rules.

The remainder of the procedural timetable is at the discretion of the Tribunal, except for the final award. Once proceedings are closed, the Tribunal must render the award within 6 months (although the parties can specify an alternative period). The overall time for an arbitration will vary depending on the parties involved, the complexity of the case, the number of witnesses and experts and the availability of the parties and the Tribunal for a hearing.

The Award

The ICC Rules allow for various types of awards, including interim, partial, and final awards. Any award must state the reasons for the decision (unless the parties agree otherwise) and be signed by the Tribunal.

Prior to the signing of an award the Tribunal must submit it to the Court, which may suggest modifications to the form and draw the attention of the Tribunal to any points of substance. The Court will consider the mandatory law at the place of arbitration when suggesting modifications to the form of the award to ensure compliance with that law.

An award cannot be rendered by the Tribunal until its form is approved by the Court. Once approved by the Court, it will be signed by the Tribunal. It should be noted that the award will then be transmitted to the parties, subject to full payment of ICC fees.

Corrections to the Award

Parties may apply for a correction to a clerical, typographical or other such error, an interpretation of the award, and/or additional awards on claims omitted by the Tribunal. This application must be submitted to the Secretariat within 30 days of receiving the award. The application should clearly specify the error and the correction being sought. Once the Tribunal has received the application from the Secretariat they will invite the other party to make comments within a short time period, usually not exceeding 30 days. After the expiry date of the comments period, the Tribunal shall have 30 days to issue their decision.

The Tribunal also has the authority to correct any clerical, computational, or typographical errors on its own initiative. This must be done within 30 days of the date of the award.

Under the ICC Rules: Are there restrictions on what arbitral seat or applicable law may be selected?

Under the ICC Rules, there are no restrictions on arbitral seat, applicable law or the geographic location of the hearing, and parties are free to agree on these matters. In the absence of an agreement between the parties, the Tribunal will decide seat, applicable law, location of hearing and language of the arbitration with due regard to the circumstances of the arbitration.

Under the ICC Rules: Is there an option for an expedited procedure?

The ICC Rules contain a regime for expedited procedure, with specific rules set out in Appendix VI. The expedited procedure applies automatically if the arbitration agreement was:

1. concluded on or after 1 March 2017 and the value in dispute does not exceed USD 2,000,000; or
2. concluded on or after 1 January 2021 and the value in dispute does not exceed USD 3,000,000.

Parties can also agree to opt in to (or out of) the expedited procedure.

The expedited procedure provides for an accelerated timeline, where the Court will nominate a sole arbitrator even if the arbitration clause requires a panel of arbitrators. The parties may also agree to nominate a sole arbitrator within the timeframe specified by the Secretariat. Once the arbitrator has been appointed and the dispute transmitted, no new claims can be made unless authorised by the Tribunal. A case management conference must be held within 15 days of the arbitrator’s appointment.

The arbitrator has the discretion to decide on procedural matters, which can include limiting the number, length and scope of written submissions. This discretion includes deciding the case based on documentary evidence only.

The final award must be rendered within six months from the date of the first case management conference. Fees for the expedited procedure are governed by a different regime to the normal procedure, and are set out separately in Appendix III of the ICC Rules.

Under the ICC Rules: Can parties appoint an Emergency Arbitrator?

Unless the parties choose to opt-out, parties to ICC arbitration can apply for the appointment of an emergency arbitrator when they require urgent interim or conservatory measures and the Tribunal has not yet received the case file from the Secretariat.

The application must be submitted to the ICC Secretariat and should include:

1. full names, descriptions, addresses and contact details of the parties involved and the applicant’s representatives;
2. a description of the circumstances giving rise to the application;
3. the specific interim measures sought;
4. the reasons why these measures are urgently needed;
5. any relevant agreements, particularly the arbitration agreement;
6. any Request and/or other submissions which have been filed with the Secretariat by either party in connection with the dispute; and
7. proof of payment of the required fee.²

Upon receipt of the application, the President of the ICC will appoint an emergency arbitrator as quickly as possible. At this stage any challenge against the emergency arbitrator must be made within three days of appointment. Once appointed, the emergency arbitrator has the discretion to conduct the proceedings in a manner they see fit. This can include written submissions and hearings conducted virtually.

The emergency arbitrator is required to issue a decision within 15 days of receiving the case file, ensuring that urgent matters are addressed promptly.

The emergency arbitrator’s decision takes the form of an order, which is binding on the parties, but can be modified or annulled by the Tribunal. After the emergency arbitrator has issued their order, the full Tribunal, once constituted, will address any requests or claims related to the emergency proceedings. This includes the reallocation of costs and any issues arising from compliance or non-compliance with the order.

Parties are also allowed to seek interim relief from a “competent” judicial authority, and such action will not constitute a waiver of the arbitration agreement.

Under the ICC Rules: How are the fees for arbitration assessed?

Each Request must be accompanied by a non-refundable filling fee of USD 5,000 (as at the date of publication). Upon receipt of the Request, the claimant may be required to pay an advance, which is intended to cover the costs of the arbitration. The Court will fix the advance on costs, usually prior to transmittal of the file to the Tribunal, to cover the expected fees and expenses of the arbitrators and any other administrative expenses. The administrative and arbitrator’s fees are scaled in accordance with the amount in dispute or at the discretion of the Court if the amount is unknown. The cost tables with information relating to fees is set out in Appendix III of the ICC Rules.

If counterclaims are submitted by the respondent, then the Court may also fix an advance for the respondent’s claims, again usually prior to transmittal of the file to the Tribunal. Any advance on costs fixed by the Court may be adjusted during the arbitration, and parties are able to pay the other party’s share in the event of non-payment. This allows a claimant (or counterclaimant) to prevent an arbitration from stalling if the respondent refuses to (or is unable to) pay its share of the advance on costs.

Under the ICC Rules: Can the parties have a virtual or hybrid hearing?

The Tribunal can decide to hold hearings virtually, by telephone or other means of communication. The Tribunal will decide on the medium of hearing following consultations with the parties and after considering any relevant circumstances to the case.

Under the ICC Rules: How can proceedings be consolidated?

At the request of a party, the Court can consolidate two or more arbitrations where:

1. the parties have agreed to consolidation;
2. all claims have been made under the same arbitration agreement; or
3. the claims are not made under the same arbitration agreement(s), but the arbitrations involve the same parties, the disputes arise in connection with the same legal relationship, and the Court finds the arbitration agreements are compatible.

Where one or more arbitrations are consolidated, they are consolidated to the arbitration that commenced first unless the parties agree otherwise.

Under the ICC Rules: What disclosures do arbitrators and parties have to make?

Under the ICC Rules, both arbitrators and parties have specific disclosure obligations to ensure transparency and impartiality. Arbitrators must disclose any facts or circumstances that might call into question their independence or impartiality including

1. any past or present relationships with the parties or their affiliates;
2. any financial or personal interest in the outcome of the arbitration;
3. any involvement in the dispute or expression of views on the dispute that might affect their impartiality; or
4. any professional or close personal relationships with counsel for one of the parties.

Parties are required to disclose the presence and identity of any third-party funders who have a financial interest in the arbitration’s outcome promptly and to allow arbitrators and parties to comply with their disclosure obligations.

Under the ICC Rules: Are awards and hearings confidential?

The ICC Rules only impose confidentiality obligations in relation to the activities of the Court, not in relation to the arbitral proceedings. However, the ICC Rules allow the Tribunal to order confidentiality and also protective measures for trade secrets and confidential information upon a party’s request. Parties may also agree on the confidentiality of proceedings in the underlying contract.

Parties should be aware that awards made from 1 January 2019 onwards can be published in full at the discretion of the ICC. Both during the arbitration and at the notification of the award, the ICC informs the parties that the award, and any other awards or orders, may be published within two years. Any party can object to publication at any stage before publication, or request that the award is anonymised or pseudonymised. If the parties have a confidentiality agreement in place between them, then publication would require consent of the parties.³

Under the ICC Rules: Does the ICC have a dedicated hearing centre?

The ICC opened its new Hearing Centre in December 2024 (40 rue Legendre, 17th arrondissement, Paris), with state-of-the-art audio and video features.

Another popular alternative for ICC disputes in Europe is London’s International Dispute Resolution Centre (1 Paternoster Lane, St. Paul’s, London EC4M 7BQ), or the Paris Arbitration Centre (92 rue Réaumur – 75002 Paris).

What is the case load of the ICC?

In 2023, the ICC received 965 matters, a total of 870 of which were arbitrations registered under the ICC Rules. The total amount in dispute for cases filed in 2023 was USD 53 billion and the average amount in dispute was USD 65 million. In 2023, 520 awards were issued and 1,766 cases were pending.

What is the approach of the ICC to diversity?

The ICC actively promotes diversity in arbitration through various initiatives. It encourages diverse appointments, including gender, racial, and cultural diversity, and has introduced model letters to the parties and guidelines to support this goal. In 2023, women made up 41 percent of arbitrator appointments by the Court. The ICC has also established networks and task forces, such as the Court LGBTQIA+ network and the Task Force on Disability Inclusion, to further enhance diversity and inclusion. To further promote diversity of arbitrators, the Court does not appoint the same person as arbitrator within 12 months of a previous appointment.

The ICC has been a signatory to the Equal Representation in Arbitration Pledge since 2016.

THE SEAT

What legislation is applicable to the arbitration agreement?

French courts, especially in Paris, are well-versed in arbitration, and France is an arbitration-friendly jurisdiction.

Chapter IV of the French Code of Civil Procedure (“FCCP”) (Articles 1442 to 1527) governs arbitration in France. The French regime is not based on UNCITRAL model law (unlike the law in Hong Kong and Uzbekistan, as covered in our previous articles on those jurisdictions), a key difference being that French law distinguishes between international and domestic arbitration. Arbitration is considered international if it involves “international trade interests”,⁴ which means the economic transaction in question spans more than one country, irrespective of the parties’ nationalities, applicable laws, or the location of the arbitration. The FCCP has limited restrictions on parties, which allows for significant autonomy in determining the rules and procedures of arbitration.

The FCCP also contains a distinction on public policy between international and domestic arbitration, with a more restrictive and narrowly defined policy applying to international arbitration. This can have implications when it comes to enforcement and be kept in mind for contracts that might have public policy elements in any disputes that are likely to arise. French law also does not impose conflict of law rules relating to issues such as the law of the arbitration agreement, simply applying French law to determine whether there is a valid arbitration clause unless the parties have expressly made the arbitration clause subject to a different legal regime.

Interim measures can be sought from the French courts prior to the constitution of the Tribunal, which include measures to preserve evidence or assets or injunctions preventing or compelling a party to do something. Notably, the French courts will not issue anti-suit injunctions, although they may recognise an anti-suit injunction that has been properly granted in a foreign court. Once the Tribunal has been constituted, the courts will decline to act, and power to grant interim measures shifts to the Tribunal (as is contemplated in the ICC Rules, although they allow for court intervention). However, even after the formation of the Tribunal, the courts retain exclusive jurisdiction over measures to ensure creditor’s rights such as conservatory seizures and judicial securities. The courts are also able to enforce interim measures issued by a Tribunal and compel a third party to provide evidence subject to the Tribunal’s approval.

Are there any mandatory laws that impact the procedure?

There are no mandatory laws regarding procedure,⁵ with parties to international arbitration usually adopting a set of institutional rules such as the ICC 2021 Arbitration Rules.

Can the Tribunal rule on issues of jurisdiction?

In French law, a Tribunal has the authority to determine its own jurisdiction. This principle is known as compétence-compétence and allows the Tribunal to rule on its own competence without interference from the courts, except in specific circumstances, such as when a consumer is involved in an international contract.⁶ The principle contains both the positive effect that the Tribunal can decide on its own jurisdiction and the negative effect that the French courts must decline jurisdiction where there is an arbitration agreement. However, it provides certainty as to who will determine jurisdiction and avoids the cost of extensive parallel proceedings. There are some limited circumstances where the court may intervene, such as where the arbitration agreement is found to be null and void or invalid or if the Tribunal has not yet been formed. The French courts can, however, review the jurisdiction of the Tribunal when deciding to enforce or annul an award.⁷

ENFORCEMENT AT THE SEAT

Is France a contracting State to the New York Convention?

France is a signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly known as the New York Convention.

The New York Convention is a pivotal international treaty that facilitates the recognition and enforcement of international arbitration agreements and awards. Its purpose is to ensure that arbitration agreements and awards are recognised and enforced across its member states with minimal procedural difficulty by requiring contracting states to:

1. recognise and enforce arbitration agreements;
2. enforce arbitral awards made in other contracting states; and
3. only refuse recognition or enforcement of these awards on limited prescribed grounds.

As of 2024, 173 countries are signatories to the New York Convention.

Enforcement challenges under French law

To enforce an award issued in France, a party must apply for an exequatur from the court whose jurisdiction within which the award was granted. For awards rendered abroad the party must apply for an exequatur from the Paris judicial court.⁸ The procedure is non-adversarial and the courts will only refuse to grant the exequatur if the award is contrary to French public policy. For an arbitration award to be valid under French law it must contain:⁹

1. the names of the parties and their registered office;
2. details of the parties’ representatives;
3. the names of the arbitrators; and
4. the date and place at which the award was made.

To challenge an award or its recognition, a party may appeal against the granting of the exequatur or seek annulment of an award.¹⁰ French law is more liberal than the New York Convention regarding enforcement and the grounds for annulling an award are narrower than those under the New York Convention. Due to the more favourable French law regime, French law is applied as permitted under the New York Convention, and the courts can only annul an award or overturn granting of the exequatur when:¹¹

1. the Tribunal wrongly upheld or declined jurisdiction;
2. the Tribunal was improperly constituted;
3. the Tribunal ruled without complying with the mandate conferred upon it;
4. the principle of contradiction (due process) was not respected; or
5. recognition or enforcement of the award is contrary to international public policy.

While generally respecting the law agreed upon by the parties when deciding to annul an award, French courts will not enforce an award if it violates French international public policy, regardless of the law chosen by the parties. The French courts have historically held a strong enforcement stance, with a breach of public policy having to be “flagrant, actual and concrete”¹² to annul an award. However, this stance has softened in recent years with a broader approach now taken by the French courts.¹³ This is particularly the case for issues such as corruption or money laundering where the courts will now ask if there is “serious, precise or converging” evidence of international public policy breach, and will investigate fact and review issues raised even after the conclusion of the arbitration.¹⁴ Some commentators have noted that this widening of the scope of judicial review may lead to increased judicial intervention in arbitration, which could affect France’s reputation as an arbitration-friendly jurisdiction.

Notably, French courts can recognise and enforce arbitral awards even if they have been set aside at the seat of the arbitration, including seats which are signatories to the New York Convention. French courts have long held that awards rendered internationally are ‘international’ decisions which are not integrated with the laws of any state. Therefore, any decision of a foreign court to set aside an award is not integrated with the legal regime of that country, and so the award remains in existence and the decision has no authority over the French courts.¹⁵ The French courts will then apply French law in deciding whether the award can be recognised and enforced.

Under the FCCP parties can also agree to waive their right to seek annulment of an arbitral award,¹⁶ which is not provided for under the New York Convention. These liberal aspects of French arbitration law make it an attractive jurisdiction for resolving cross-border disputes.

What are the requirements for a valid arbitration agreement?

In France, certain disputes are not arbitrable due to their nature and the involvement of public interest. These include disputes related to personal status and capacity, matters of criminal law and disputes concerning public bodies.

As with enforcement, French law is liberal as to what constitutes a valid arbitration agreement for international disputes. There are no specific requirements for an arbitration agreement to be valid, including no requirement that the agreement be in writing. To determine validity the French courts will assess the common intention of the parties, reviewing the context in which the agreement was made and the intent of the parties beyond the wording of the clause. As long as the common intention to arbitrate is clear then the arbitration agreement will be valid.

Notwithstanding that there is no requirement for the agreement to be in writing to be valid, there are significant risks associated with attempting to rely on an oral agreement — both at commencement of an arbitration and at any enforcement stage — particularly if one party disagrees as to the existence or scope of the agreement. Evidence of an oral agreement is very difficult to provide and would significantly increase the cost of proceedings and risk of losing the benefit of agreeing to arbitrate. Any oral agreement should be recorded in writing as soon as possible thereafter.¹⁷

^{1The ICC Rules explicitly state that joinder of an additional party must be done before the constitution of the Tribunal.}

^{2The fee being USD 10,000 to cover administrative expenses and an additional USD 30,000 to cover the arbitrators fees.}

^{3Note to parties and arbitral Tribunals on the conduct of the arbitration under the ICC rules of arbitration, 1 January 2021, Part IV.C. – Publication of Awards, Procedural Orders, Dissenting and/or Concurring Opinions.}

^{4Article 1504 of the FCCP.}

^{5Article 1494 of the FCCP.}

^{6Enshrined in Articles 1448 and 1465 FCCP}

^{7Article 1520 of the FCCP.}

^{8Article 1516 of the FCCP.}

^{9Article 1481 of the FCCP.}

^{10Article 1520 and Article 1525 of the FCCP.}

^{11Article 1520 of the FCCP.}

^{12Paris Court of Appeal, 18 November 2004, No. 2002/19606; Court of Cassation, 4 June 2008, No. 06-15.320.}

^{13Established in the landmark case of Belokon (Paris Court of Appeal, 21 February 2017, No. 15-01650 as upheld by the Court of Cassation, 23 March 2022, No. 17-17.981).}

^{14Paris Court of Appeal, 5 April 2022, No. 20-03242.}

^{15Established in Hilmarton, Court of Cassation, 23 March 1994, No. 92-15.137.}

^{16Article 1522 of the FCCP.}

^{17From an enforcement perspective, under the New York Convention, an arbitration agreement must be:}

1. in writing;
2. dealing with current or future disputes with a defined legal relationship;
3. concerning a matter that is capable of settlement by arbitration;
4. between parties that have legal capacity; and
5. valid under the law chosen by the parties, or the law of the seat (if there is no choice).

^{Therefore, these additional requirements must be complied with in order to benefit from the New York Convention, if seeking enforcement in another country of an award from a Tribunal seated in France.}

*Jack Skinner, a trainee solicitor in the London office, also contributed to this article.