Validity of Compromissory Clause in French Law

Extract

[...] Finally, the situation giving rise to the dismissal for lack of implementation of a clause that establishes a mandatory and prior mediation procedure to the judge's seizure is not susceptible of being regularized by the implementation of the clause in the course of the proceedings. - Civ. 3rd Oct no 15-17.989). These clauses benefit from the provisions of Article 2234 of the Civil Code which suspend the prescription. In this case, the mediation clause was provided for in the contract and was to be implemented prior to arbitration. Furthermore, the absence of implementation of this clause constitutes a dismissal for lack of jurisdiction that should have been invoked during arbitration. [...]

[...] Nevertheless, it is necessary to study the modalities of contesting the arbitral award. The contestation of an arbitral award Article 1494 of the Civil Procedure Code gives jurisdiction to the Court of Appeal to rule on any appeal or annulment action against an arbitral award. The first linehe of the same article specifies that: « The competent court of appeal will be that within the jurisdiction of which the judgment was rendered. However, the time limit for appealing or filing an annulment appeal is that of the ordinary means of appeal, as provided for in Article 538 of the Civil Procedure Code, namely one month, except for distance time limits. [...]

[...] Also, provisional measures can be requested before a state court, but only « as long as the arbitral tribunal has not been constituted (Reims July 2012, RG no 11/01889). Furthermore, these measures must be justified by urgency in accordance with the provisions of Article 1449 of the Civil Procedure Code, in particular for the provisional referral (Civ. 2e June 2002, n° 00-20.077 - Civ. 1re Oct n° 10-17.708). However, when the dispute at the origin of the request for provision and that submitted to the arbitrators are not of the same nature, the judge may nonetheless grant a provision (Civ. [...]

[...] Another solution would be to contest the validity of this clause. However, even if the jurisprudence has been able to admit that the will of the parties to submit to it must be explicitly stated in the convention, for all that the initial conditions of implementation required by the jurisprudence (Com Apr n° 12-27.004) have not been taken up subsequently (Soc Jan n° 17-22.640 and Civ. 3e May 2016, n° 15-14.464). Furthermore, it results from a constant jurisprudence that ' it is permissible for the parties to renounce the execution of an arbitration agreement ( Civ. [...]

[...] 2e March 1989). Finally, in a recent order, the referring judge has admitted the introduction of a provisional referral due to the age and amount of a claim of one of the parties to the arbitration agreement (Douai July 2022, RG n 21/05850, T'Orsa). In this case, the interim relief proceedings present the most effective solution if mediation did not have the desired effects in obtaining part or all of the funds owed to Covec, subject to the condition that the arbitral tribunal is not constituted. [...]