Jurisdiction And Arbitration Agreements In International Commercial Law
However, the Court of Cassation is quite demanding when it verifies whether the procedural judges have correctly assessed and characterized the manifestly null and void or unenforceable nature of an arbitration agreement. International agreements or the national laws of the majority of States generally provide that the court of the State must leave remedies without consideration in the event of an arbitration agreement. The national court may not raise its lack of jurisdiction. In other words, the Court of Cassation has clarified that jurisdiction clauses should not be confused with arbitration clauses. Although the two types of clauses differ from the rules applicable to the ordinary court, they are subject to two different rules. (1) the substantive validity of the arbitration agreement without choice; In its decision of 5 September 27, 2018, the Court of Cassation however annulled the appeal decision on this point, stating that "the provisions of Article 48 of the French Code of Civil Procedure on jurisdiction clauses do not apply to arbitration clauses". In other words, the arbitrator must decide first and foremost on the existence, validity and extent of the arbitration agreement submitted to him. The national court does not have jurisdiction in this respect unless it finds that the arbitration agreement is manifestly null and void or inapplicable6. Indeed, this decision of the Court of Cassation deserves particular attention, because it strongly recalls that arbitration and jurisdiction clauses - even if they have common characteristics, since they derogate from the usual rules of jurisdiction - are not subject to the same legislation.
3 This importance of the law of the registered office has an important harmonising effect on the determination of the law applicable to the validity of the arbitration agreement. It aims to avoid the friction and contradictions that can arise if different laws apply to these issues. The decision-making harmony created by the seat is important, as the arbitration agreement forms the basis of the Tribunal`s jurisdiction. This requires strict, expeditable, practicable and universally recognized conflict rules, in order to avoid further complications if the court`s jurisdiction is challenged by only one party. . . .