The report of the working group co-chaired by Professor Thomas Clay and the Counsellor to the Court of Cassation François Ancel delivered in March 2025 sets the stage for a future Arbitration Code based on 146 articles and proposes a reform of the subject around 40 proposals. Here are 5 points of attention for users and practitioners.

The end of the strict formalism jeopardising the validity of the arbitration agreement

Today, to be valid, the arbitration clause in matters of domestic arbitration must be written under penalty of nullity (Code of Civil Procedure, art. 1443) and designate the arbitrators or the procedures for their appointment (Code of Civil Procedure, art. 1444). A formalism diametrically opposed to international arbitration in which the arbitration agreement is not subject to any formal requirements (Code of Civil Procedure, art. 1507).

Change (art. 21 of the proposed code; proposal no. 11)

Whether in matters of domestic or international arbitration, the arbitration agreement is not subject to any form requirements.

Why it's important

Flexibility makes it possible to get rid of a formalism that endangered the validity of arbitration clauses in internal arbitration.

Practical advice

Even if the clause is valid in any form, maintain written clauses. Writing will allow you to prevent disputes over consent to arbitration and to anticipate evidentiary difficulties regarding the existence of the arbitration agreement at the stage of exequatur, execution and/or recourse for cancellation where appropriate.

The reaffirmed autonomy of the arbitration agreement

Case law recognizes the principle of separability of the arbitration clause (Cass. 1st Civil Code, May 7, 1963, No. 61 11.332, Gosset).

Change (art. 2 of the proposed code; proposals 3 and 4)

The Code states that the arbitration agreement is not affected by the ineffectiveness of the contract containing it and that its existence and effectiveness are assessed in the light of the common will of the parties.

Why it's important

This ensures that the dispute resolution method does not collapse even if the main contract is contested; if the contract is void, the arbitration clause survives to settle the dispute. It also ensures that the arbitral tribunal has jurisdiction despite the fact that one party contests the validity of the contract.

Practical advice

In order to avoid wasting time in dilatory bifurcations or debates, it is preferable to avoid clauses providing that “any dispute relating to the execution of the contract” is submitted to arbitration. In fact, a party contesting the validity of the contract could argue that there was never any performance and therefore that the arbitration was null and void. It therefore remains preferable to specify that “any dispute relating to the validity, interpretation, execution or resolution and/or invalidity of the contract” will be submitted to arbitration.

Independence of the arbitration agreement with regards to state laws

The existence and effectiveness of the clause in international arbitration are assessed, except for mandatory rules of French law and international public order, according to the common will of the parties without the need to refer to state law (Cass. 1st civ., December 20, 1993, December 20, 1993, No. 91-16.828, Dalico).

Change (art. 2 of the proposed code; proposals 3 and 4)

The text proposes to secure arbitration agreements. What national law should one refer to to determine whether an arbitration agreement is valid? None, the Arbitration Code tells us. The validity of the clause does not depend on French law, nor on the law of the seat, nor on the law of the contract, but only on the common will of the parties.

Why it's important

The provision makes it possible to secure the clauses in relation to changes in local regulations, in particular with regard to the arbitrability of a matter. Imagine an arbitration agreement between two companies from different countries, one of which sees the birth of a new law prohibiting arbitration in the sector concerned. Under this new provision, the arbitration agreement survives because it is disconnected from state laws; only respect for international public order matters.

Practical advice

The objective being to avoid a state law from destabilizing the arbitration agreement, specify in clause (i) the seat of the arbitration in Paris and (ii) the law applicable to the substance of the contract, without specifying the law applicable to the arbitration agreement. The Arbitration Code will take care of the rest by preventing state laws, including any future French laws, from interfering with the validity of the arbitration agreement. Indeed, specifying that the law applicable to the arbitration agreement is French law could create a situation of “involuntary opt-out” in which the parties would renounce protective autonomy and the clause would be ousted by a new law.

Effectiveness: the arbitral tribunal can liquidate penalties that it has awarded

Today, only the competent state judge can impose a penalty payment on a decision and liquidate it (Code of Civil Enforcement Procedures, art. L.131-1). Although the arbitrators are in a position to pronounce them, the liquidation of penalties is necessarily carried out by referring them to the Enforcement Judge.

Change (art. 59 of the proposed code; proposal no. 26)

As long as it is seized, the arbitral tribunal may liquidate the penalty payment it has imposed.

Why it's important

The arbitrator who already knows the merits of the case will be able to decide on the most fair financial penalty. The procedure is becoming more efficient because the parties concerned do not need to refer the matter to the Enforcement Judge at the cost of months of waiting.

Practical advice

In order to increase efficiency, explicitly ask the arbitral tribunal, at the beginning of the procedure and from the first pleadings, that the arbitral tribunal itself pay the penalty in its final award.

The supporting judge is awarded new powers

The powers of the supporting judge remain limited today.

Change (art. 33 and art. 41 of the proposed code)

The role of the supporting judge is strengthened. Its mission is now to prevent denials of justice, and may be referred “for the purpose of pronouncing any measure likely to allow the implementation of arbitration”. The supporting judge will now be able to order the forced execution of provisional or interim measures ordered by the arbitral tribunal.

Why it's important

The supporting judge reinforces the effectiveness of arbitration and becomes a major ally.

Practical advice

For international contracts, the competence of the supporting judge is centralized in Paris. It is a guarantee of predictability. As soon as a difficulty in setting up or conducting the arbitration, or in the execution of the decisions of the arbitral tribunal arises, do not hesitate to contact the supporting judge for support.

Digital: trust in the electronic award and simplified notification

To date, a significant number of arbitration proceedings are conducted in a dematerialized manner and awards signed electronically. Electronic writing, electronic signatures and so-called “reliable” copies are recognized and regulated (Civil Code, art. 1366, 1367, 1379 and decree no. 2016-1673 of 5 December 2016). However, in proceedings for the exequatur of arbitral awards, an “original” or a “copy” of the original of the award is required (Code of Civil Procedure, arts. 1487 and 1513). Some transplants are reluctant to receive a PDF that does not have a “fresh ink” signature.

In addition, the texts require “notification” of the award, which must be by means of “service”, unless the parties waive it. According to the texts, certain periods run from the date of “service” by bailiff (Code of Civil Procedure, arts. 1484, 1494 and 1519), which in case of service abroad may take several months. It was therefore usual for the parties to expressly exempt the court in the act of mission from serving the award within the meaning of articles 1484 and 1519 of the Code of Civil Procedure, which may cause complications at the stage of exequatur, enforcement, or concerning the calculation of appeal deadlines.

Change (arts. 64, 65 and see articles 68, 69 and 70 of the proposed code)

The electronic award is approved, provided that it is written, signed and stored in conditions that guarantee its integrity.

In addition, the award is communicated to the parties by the arbitral tribunal or by the arbitration center, in accordance with the forms and procedures provided for in the arbitration agreement or rules. Otherwise, it is communicated by any means. The meaning remains only for the parties who did not appear.

Finally, electronic awards and simplified notifications, provided they are provided for, are recognized for the needs of post-arbitration procedures.

Practical advice

In order to anticipate difficulties, include an express mention in the mission statement that the parties accept the delivery of an electronic award and specify the procedures for notification of the award by the court or by the institution under whose aegis the arbitration is conducted. Consideration could even be given to including these elements as early as the drafting of the arbitration agreement in order to avoid having to discuss them at the procedure management conference. Attention: if you plan to be notified by email or via a platform, the appeal period starts to run immediately.