The exequatur of the arbitral awards in France
An arbitral award is defined in French law as an international legal decision, which is not attached to any national legal order and whose regularity in France is appreciated under French law (constant case law of the French Cour de cassation).
Procedure and conditions of the exequatur of the arbitral awards in France
France signed on November 25th, 1958 the Convention for the recognition and the execution of the foreign arbitral awards of June 10th, 1958 known as the "New York Convention".
Each contracting State of the New York Convention recognizes the authority of an arbitral award and grants the execution in accordance with the procedural rules followed in the territory where the award is executed.
One of the basic principles of the New York Convention is that it will not be imposed, for the recognition or the execution of the awards, of condition more rigorous, nor of court fees more important, than those which are imposed for the recognition or the execution of the national awards.
In French law, the arbitral awards are recognized in France if their existence is established by a party and if this recognition is obviously not contrary with the international public order.
The French tribunals and courts can refuse the exequatur to an arbitral award over this base.
Recently, the Cour de cassation, in a judgment of May 6th, 2009 International Company For Commercial Exchanges (Income), has refused the exequatur of an arbitral award delivered by the Refined Sugar Association. The court justified this decision by the fact that the sentence had condemned a party in violation of the rule of the suspension of the individual pursuits by the creditors, which is a rule of public order.
The Cour de cassation specified its case law in a judgment of March 9th, 2011 Société Chantiers de l'Atlantique (CAT) vs. Société Gaz Transport et Tecnigaz (GTT) and decided, about an award given in London, that the control of compatibility of an arbitral award with the international public order is limited however to the obvious, effective and concrete violation.
The arbitral awards are declared enforceable in France by the Tribunal de Grande Instance (French tribunal of first degree).
The exequatur is written over the original of the award. The decision which refuses the exequatur must be justified.
Rules on the provisory execution of the judgments are applicable. In case of an appeal or a procedure for annulment, the First president (Premier Président) or the procedural Magistrate (Juge de la mise en état), can grant the exequatur to the arbitral award together with the provisory execution. He can also order the provisory execution. His decision is worth exequatur.
Practice of Maître David MOTTE-SURANITI in the exequatur of the arbitral awards in France
France is one of the countries leaders in international arbitration.
The exequatur in France of an arbitral award allows the party which is prevailed about it to then execute this award against its adversary, on the goods and assets that this one owns in France (movable properties, real estate, bank accounts).
The ministry of an Attorney is obligatory in the procedure of exequatur and it is essential for a party of get the advice of an Attorney familiar with this one.
Maître David MOTTE-SURANITI has a solid experience of the exequatur in France of the arbitral awards and represents in France its foreign Clients, as well in demand as in defense.
The Firm proceeds to the exequatur of arbitral awards delivered, in particular, under the auspices of the following arbitration courts:
- The International Court of Arbitration of the International Chamber of Commerce (ICC).
- The International Center for Settlement of the Investment Disputes (ICSID).
- The Permanent Court of Arbitration (CPA).
- The Common Court of Justice and Arbitration (CCJA) of Abidjan.
- Like any ad hoc arbitral award delivered in a foreign country.
The objective of the exequatur in France of an award being to carry out its execution, the Firm controls the whole of the procedure, whose stages are the following ones:
1. Identification of the goods and assets owned in France by the adversary: the Firm identifies the movable property, the real estate as well as the bank accounts owned in France by the debtor, and this by having access to French public information and, if necessary, while being assisted of its usual private investigator.
2. Provisory seizure of the goods and assets of the debtor on the basis of the arbitral award, not yet with the exequatur. French case law considers indeed that an arbitral award without the exequatur constitutes a provisory judgment making it possible to proceed to a provisory seizure.
3. Exequatur of the arbitral award according to the applicable procedure and conditions, before the Tribunal de Grande Instance.
4. Conversion, on the basis of the arbitral award which have received the exequatur, of the provisory seizure into a definitive seizure.
5. Seizure of the goods and assets of the debtor and payment to the Client.
Maître David MOTTE-SURANITI also frequently intervenes in defense to the exequatur.
By developing technical arguments, he makes it possible its Clients to make failure at the request of exequatur of their adversary.
Applicable texts on the exequatur of the arbitral awards in France
Convention of New York of June 10th, 1958 for the recognition and the execution of the foreign arbitral awards.
Decree n° 59-1039 of September 1st, 1959 (D. 1959. 581; BLD 1959. 1133) for the publication of the Convention for the recognition and the execution of the foreign arbitral awards.
Articles 1476 to 1479 and 1498 to 1500 of the French Code of civil procedure.
Article R 212-8 of the Code of judicial organization, resulting from the Decree n° 2008-522 of June 2nd, 2008 - Article (V)).
Bibliography on the exequatur of the arbitral awards in France (in French)
FLECHEUX, Journées de la société de législation comparée, 1986, p.15 : Reconnaissance et exécution des sentences.
A. HUET, JDI 1988. 5 : Reconnaissance et exécution des jugements étrangers et des sentences.
MOUSSA, Gaz. Pal. 1992. 2. Doctr. 275 : exequatur.
D. MOTTE-SURANITI : L'exécution en France des sentences arbitrales CCJA, Penant n° 866, Janvier-Mars 2009 ; Revue trimestrielle de droit et de jurisprudence des affaires n° 2, juillet-août-septembre 2009.