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Key features of arbitration
How does arbitration work?
Arbitration advantages and disadvantages
PacisLexis Family Law
Arbitration lawyer
Sometimes within family members, disputes raised up, and a third party is getting involved to decide what the outcome should be.
Arbitration is a way of settling a dispute with a third-party involved, the arbitrator, who will design and make a decision to resolve it.
Arbitration lawyer
Key features of arbitration
What is arbitration?
Arbitration is a method of resolving a dispute and is an alternative to court proceedings. An arbitrator is appointed, and the decision is legally binding.
Private arbitration is ruled by French civil code article 1442 and international arbitration is ruled by French civil code article 1504.
How is an arbitrator appointed?
Choosing an arbitrator is free and their number is always odd (1,3,5…).
Arbitrators are appointed as follows:
- The parties appoint an arbitrator each and a third arbitrator is nominated and will lead the dispute.
- The parties choose to appoint an arbitrator between themselves or agree that a third party appoint an arbitrator.
A lawyer can be an arbitrator. There is no training to be an arbitrator.
What is the difference between arbitration and mediation?
With a mediation, the parties maintain control whereas in arbitration the judge or the arbitrator is in control of the process and makes the final decision.
What is the difference between mediation and collaboration?
Collaboration or collaborative law process is a hybrid between a divorce involving lawyers and divorce mediation but overall, collaboration pursues the same goals:
- Resolving an issue by the involved parties themselves and not by a third one.
- Parties will be more inclined to apply their solutions they have chosen themselves
- Long lasting solution: communication is key to addressing issues but also to prevent them in the future.
- Take everyone’s needs into account: Needs identified during mediation may differ from those presented in court. For instance, a parent might request joint custody in court, but the underlying need is to maintain regular contact with the child.
- Avoiding legal proceedings: a family law judge is about resolving issues most of the time but sometimes not.
What are the differences between UK arbitration and French arbitration?
Arbitration processes in the UK and France share common principles, but there can be differences due to legal traditions, practices, and specific regulations. Here are some general distinctions:
- Legal Framework:
UK: The UK has a well-established legal framework for arbitration, primarily governed by the Arbitration Act 1996. The law provides a modern and comprehensive set of rules for arbitration proceedings.
France: French arbitration law is largely based on the Code of Civil Procedure, with reforms introduced in recent years. The French system is influenced by both the UNCITRAL Model Law and European arbitration principles.
– Arbitral Institutions:
UK: The London Court of International Arbitration (LCIA) and the Chartered Institute of Arbitrators (CIArb) are prominent institutions facilitating arbitration in the UK.
France: The International Chamber of Commerce (ICC) is headquartered in Paris and is one of the leading arbitral institutions globally. Additionally, France has its domestic institutions like the French Arbitration Association (AFD) and the Paris International Chamber of Arbitration (CCI).
- Arbitrator appointment:
UK: The parties often have more flexibility in choosing arbitrators, and there’s a tradition of party-appointed arbitrators.
France: The French system tends to involve more active court intervention in the arbitrator selection process, and there is a practice of party-appointed arbitrators, but the presiding arbitrator may be appointed by an institution or judicial authority.
- Court Involvement:
UK: The English courts generally adopt a pro-arbitration stance, with limited interference in arbitral proceedings.
France: French courts can play a more active role, particularly in matters such as arbitrator appointments, interim measures, and challenges to awards.
- Confidentiality:
UK: Arbitration proceedings are often confidential, and the Arbitration Act 1996 emphasizes the privacy of the process.
France: French law also supports the confidentiality of arbitration, but there are instances where court hearings may be public.
- Appeal of Awards:
UK: Grounds for challenging or appealing arbitration awards are limited, in line with the pro-enforcement approach of the New York Convention.
France: French law allows a limited form of appeal on points of law, which is different from the more restrictive approach in some other jurisdictions.
It’s essential to note that these generalizations may not capture all nuances, and specifics can vary based on the parties’ agreements and the nature of the dispute. Additionally, both jurisdictions have experienced ongoing developments and reforms in their arbitration laws.
Our law firm can help you navigate throughout all jurisdictions.
Arbitration lawyer
How does arbitration work?
When choosing arbitration?
Parties can choose arbitration before or after the beginning of the dispute.
How choosing arbitration?
Choosing arbitration depends on when the dispute appears.
There are then 2 options:
- There is already a dispute: an arbitration agreement is signed between the parties. Parties agree to have disputes determined by arbitration.
- There is no dispute yet: a contract must be drafted including an arbitration clause in case of a dispute (as a wedding contract or civil partnership agreement). The clause stipulates that parties agree to arbitration in case of a dispute.
When would you use arbitration in France?
Contractual and non-contractual claims can be solved throughout arbitration. Family law matters in France can be referred to arbitration.
Example: solving a dispute regarding marital assets (shares of assets) when getting a divorce.
When arbitration is not possible?
Disputes cannot be referred to arbitration when a court decision is compulsory.
Examples: parental responsibility disputes, disputing parentage, divorce pronouncement of the final order…
What are arbitration steps?
Arbitration steps are as follows:
- Agreement signature or contract including an arbitration clause
- Hearing
- Decision
- Court enforcement
Is a lawyer compulsory?
No but it’s highly recommended!
Arbitration lawyer
How does arbitration work?…Next
Is the decision legally binding?
Yes!
The decision is legally binding.
Is the decision enforceable?
No!
To be enforceable the decision must be declared enforceable by the Court.
What is called exequatur in France?
In France, “exequatur” refers to a legal procedure in which a foreign or local judgment is officially recognized and declared enforceable by a French court.
Essentially, it is the process by which a foreign or local court decision, particularly in civil and commercial matters, is given legal effect within the jurisdiction of France.
When a party wishes to enforce a foreign judgment in France, they typically need to obtain an exequatur from a French court. The exequatur confirms the validity and enforceability of the foreign decision in the French legal system. The court will review the foreign judgment to ensure that it complies with certain criteria, such as respecting fundamental principles of French public policy and being compatible with French law.
Once the exequatur is granted, the foreign judgment has the same force and effect as a domestic judgment, and the party seeking enforcement can take legal steps to execute the judgment in France.
It’s important to note that the exequatur process is a means of recognizing and enforcing foreign judgments in France and is distinct from the recognition of foreign arbitral awards, which follows a different legal framework.
Can you appeal an arbitral award?
An appeal against an arbitration award is possible within a month after the arbitration claim is served.
Please note that in France, parties can also reject an appeal within the arbitration agreement.
An appeal to invalidate the arbitration is possible in Court.
Also an arbitration award cannot be challenged in Supreme Court.
How long does it take for an arbitration decision to be served?
An arbitration decision can be served from 6 months up to a year depending on the complexity of the situation itself, various proceedings and the timeline.
Arbitration costs and fees
The cost of an arbitration is settled within the agreement.
Arbitration lawyer
Arbitration advantages & disadvantages
Arbitration hearings are not public.
Arbitrators are nominated, parties can choose their jurisdiction, timeline can be fixed or not, type of decisions …
The arbitrator is not a judge, so there is no guarantee on their impartiality. However the arbitrator’s impartiality is rarely challenged.
Compared to collaboration and mediation, arbitration is pricier.
However, the decision can be served within few months whereas legal proceedings in Court can take up to several years.
Thus, arbitration is less pricy.
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and to care
PacisLexis Family Law
You want to learn more about arbitration and international arbitration?
With a team of experienced arbitrators, PacisLexis Family law ensures that clients navigate the complexities of arbitration with confidence, securing fair and enforceable outcomes.
Whether handling international commercial disputes or family law matters, PacisLexis Family law is committed to delivering tailored arbitration solutions, emphasizing cost-effectiveness and preserving our clients’ interests.
PacisLexis Family Law
Our divorce articles
Lifetime gifts
In France there are 2 types of lifetime gifts:
– ‘la donation simple’: in France, ‘la donation simple’ or lifetime gift is any gift that you give away to another person whilst you are still alive . A gift is a transfer of anything such as item, property or money.
The individual can be an heir, a friend or a charity. Please note that if the individual is an heir, the gift(s) that you have made can still make up part of the value of your estate and either can be challenged by the other beneficiaries or heirs and taxed.
Child maintenance payments tax
To learn more about child maintenance payments tax in France, we invite you to read this article.
Children maintenance rules for a set of payment made from one parent to another to help pay for your child’s living costs. It’s paid by the parent who doesn’t usually live with the child to the person who has most day-to-day care of the child and called ’child support’.
This payment is not only based on day-to-day care of the child but also on both parents’ revenue.
Spousal maintenance payments tax
For a complete guide about spousal maintenance payments are deductible or considered as income in France, we invite you to read this article.
Spoual maintenance definition: Spousal maintenance is a payment paid by a spouse to the other spouse if a spouse doesn’t have enough income after you’re separated from the other.
In France, there are 2 types of spousal maintenance: spousal maintenance before being legally divorced and spousal maintenance after being legally divorced, so after the final order has been served.